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.
There are those who hate having their conduct or motives questioned, and when we encounter those who try their best to suppress our questioning or the expressing of our own opinions, there are aspects to consider in our personal responses to such attempts at gagging – we must be willing and take the responsibility to continue to personally question, even if our questions are not welcome. Rick Levine, Christopher Locke, Doc Searls and David Weinberger wrote a confronting book, aimed at challenging many of the positions held by big corporations. They state: “… If you wish to be useful, never take a course that will silence you. Refuse to learn anything that implies collusion, whether it be clerkship or curacy, a legal fee or a post in a university. Retain the power of speech no matter what other power you may lose. If you can take this course, and in so far as you take it, you will bless this country. In so far as you depart from this course you become dampers, mutes and hooded executioners. As a practical matter, a mere failure to speak out upon occasions where no opinion is asked or expected of you, and when the utterance of an uncalled-for suspicion is odious, will often hold you to a concurrence to palpable iniquity. Try to raise a voice that will be heard from here to Albany and watch what comes forward to shut off the sound. It is not a German sergeant, nor a Russian officer of the precinct. It is a note from a friend of your father’s offering you a place in his office. It is your warning from the secret police. …” (by John Jay Chapman in Levine, Locke, Searls and Weinberger, 2000: 44-45)
After hearing about IBAC’s commendable actions in relation to Casey Council, I felt it vital that my experiences with another Shire Council (Baw Baw), and the other related government authorities be exposed in some detail.
In 2003 my husband and I bought a property in Neerim North through our superannuation fund. We chose the property as our intended place of retirement due to its then peace and quiet, and set about improving the property and preparing to build a new house (this peace and quiet was later noted and confirmed by the Baw Baw Shire Council’s manager of strategic planning, Peter McWhinney, and is quoted later).
In 2006 the land to the immediate north of us was sold for operation as a quarry to two men being man X and man Y, both being directors of a company with an acronym of CASACIR Pty Ltd (through which they intended to operate the intended quarry on the land). CASACIRs acronym was later confirmed at VCAT, as well as under oath at the Supreme Court by both of the directors, as being “Crush Any Shit And Call It Rock” – which (1) was considered by them to be entirely appropriate as it was reflective of the acknowledged (poor) quality of some of their Mount Speed resource and (2) man Y additionally swore under oath that they didn’t care if everyone knew the accuracy of the acronym and that they would not change it
Naively, we had felt safe in the belief that existing legislation would protect us from unwanted and illegal impacts, including believing in the protections of, amongst others:
- the Planning Scheme (legislation made under the Planning and Environment Act 1987 (Vic)),
- the Water Act 1989 (Vic),
- the Mineral Resource (Sustainable Development) Act (MRSDA) (Vic), and
- the State Environmental Planning Policies (SEPPs).
This belief in the protections was sadly proved to be false because, in spite of the fact that there were profound binding legal protections in legislation, those protections were largely, and at times, completely, ignored – in large part due to what seems to be largely concealed prolific and systemic agreements and consents[1] between the various regulatory authorities themselves, and between the regulatory authorities and man X, man Y, and CASACIR, the owners and operators of the then proposed quarry. I will refer to the agreements and consents as being “collusion” as that is what it certainly appeared to be to me and that is my personal opinion – for what purpose they “colluded”, I can only guess[2].
There is a massive investment in shaping legislation to serve the community, the environment, and the development of business opportunities. Indeed the role of government is to ensure that the legislative framework of a jurisdiction works to deliver and protect the public good. It is understood that these groups will, at times, have different motivations, emphasis or even seemingly incompatible claims and/or rights, and, as such, the intent of legislation can become a matter of interpretation and subject to contest. Again, there is legislation that addresses exactly these matters, aiming to provide a clear, unambiguous path to resolving potential conflicts. A simple example of this articulation of resolving conflicting interests relates to tensions between quarries and private dwellings, where legislation has enshrined the legal demand for clearly defined buffers between quarries and “sensitive land uses” that, by law, have to be owned and/or controlled by the quarry business. The planning scheme describes the requirements in the following terms in 14.03-1S[3]: “Develop and maintain buffers around mining and quarrying activities. … Ensure planning permit applications clearly define buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry”.
That we have good laws is commendable, but good laws on their own are insufficient. In addition to forming just and proper legislation, it is a vital role of government, and regulatory authorities in particular, to ensure that the legislative framework of a jurisdiction works to actually deliver and protect the public good as intended by the law. Unfortunately, good laws are not always applied, particularly when there is clear and deliberate deviation away from the intent of the law. In such situations, impacted individuals face a strong up-hill, prolonged, and costly battle when trying to address areas of legal disputes involving big business, government and the so-called “justice” system.
To give weight to this webpage, an overview of some of the numerous major breaches of the law by the quarry operators, as well as the failures to act in good faith, the breaches of the law and/or failures to apply the law by authorities, let alone the apparent collusions, that I have been unhappily impacted by are articulated and are as noted below (and on other webpages).
The regulatory authorities in our case were generally represented by Peter (McWhinney) of Baw Baw Shire Council (“council”), Anne (Bignell) and Bob (Duncan) of the Earth Resources section of the then Department of Primary Industries (“DPI”), Adam (Dunn) of West Gippsland Catchment Authority (“WGCMA”), Trevor (McDevitt) of Southern Rural Water (“SRW”), and Jaclyn (Fingas) and Karen of Environmental Protection Authority (“EPA”).
Even man X, man Y and CASACIR’s legally binding permit and work authority’s flawed conditions were not, and still are not[4], enforced at the Neerim North quarry. On behalf of myself, my husband, and our company, I was forced to take legal action against man X, man Y and CASACIR in Victorian Civil and Administrative Tribunal (“VCAT”) in 2009[5] for the multiple breaches of their conditions because the regulatory authorities (particularly council and DPI) adamantly refused to do so (more on that later).
In that VCAT hearing, rather than addressing the numerous examples of breaches, man X, man Y and CASACIR, with the active assistance of council and DPI, instead, focussed on attacking me as a person. In fact, man X, on behalf of himself, man Y and CASACIR (and with their later acknowledged authority and approval) provably and knowingly lied under oath, both verbally and in affidavits. Their legal strategy of trying to avoid debate on breached conditions, combined with their lies under oath, worked in that they won the case and demonstrable breaches continued unchallenged by the authorities, and then also by VCAT.
The following exemplifies some of the legislative and other failures (and apparent collusions) that apply to my circumstances and, worse, some still have not been rectified (as at the end of 2019), but were instead, endorsed through the Victorian legal system, including VCAT and the courts because of man X, man Y and CASACIR’s lies and the prolific acceptance and assistance of breaches by the regulatory authorities:
Water and drainage
The Water Act in section 8 identifies rights to take and use water flowing through a property for stock and domestic purposes[6]. This was our case as we, on our property, depended on the then clean, clear spring-fed flows of Kookaburra Creek — however, Man X, Man Y and CASACIR not only came along and polluted the flow, they illegally diverted the flow, and they intended to permanently remove the entire natural flow of Kookaburra Creek from us, as well removing its upper catchment, the aquifers that feed it, and the spring from which it originates; and they still intend to do so even after having signed a binding Terms of Settlement Agreement saying that they would not do so (thereby committing deliberate and premeditated fraud by having signed the document – but more details of that fraud later). In spite of our pre-existing legislated rights to the use of the flow of water under section 8, council, DPI, WGCMA, EPA, and SRW, all actively worked together to support man X, man Y and CASACIR permanently removing the flow of Kookaburra Creek, its spring and the upper catchment and aquifers which feed it[7] from us. Further, council, DPI, WGCMA, EPA, and SRW, all then actively colluded together to support man X, man Y and CASACIR’s intention to replace what had been clean, clear spring water (prior to the advent of the quarry) by way of pumped provably polluted quarry wastewater and drainage as was collected in the quarry sump, and they allowed this in the face of our ardent and repeated objections (in spite of the legal requirement that they not do so without our consent, which consent was never going to be forthcoming). The risk to the environment and public in the breaches of legislation in this regard is that it proves that even though a person has legislated rights to water on their property, big business such as man X, man Y and CASACIR can feel it is their right to take the water, and regulatory authorities will allow it – thus robbing us and the environment of the flow.
The Water Act in section 51 dictates that a take and use licence must be applied for and granted prior to any take and use that does not relate to stock or domestic use, and it was a condition of man X, man Y, and CASACIR’s permit that, prior to any taking and using of the water, if their use of the water determined it, they had to apply for a take and use licence[8]: “If groundwater or water surface water supplies (other than stormwater harvested from roofs or from what stormwater falls within the quarry itself) will be used for industrial or commercial purposes, a licence in accordance with section 51 of the Water Act 1989 will be required”. The 2008 VCAT members noted that [emphasis mine]: “We were informed that the Latrobe Catchment is capped which means that no new licences will be issued. We were provided with a letter from the Minister dated 23 June 2008 to this effect, thus implying that the permit applicant would have to purchase a licence for an existing entitlement to be able to proceed. The applicant was of the view that this is a matter that could be dealt with at some later date. … should a licence be necessary and the applicant be unable to obtain one, then the project will not be in a position to proceed[9] … Subject to more stringent permit conditions to ensure the amenity of neighbours and the environment is protected, we direct a permit to issue for a hard rock (basalt) quarry on this site[10]”. Man X, man Y and CASACIR deliberately ignored the need for a take and use licence, and they did so with the assistance of the regulatory authorities. In addition: (a) man X, man Y and CASACIR had the full knowledge that they would require a take and use licence well prior to any works commencing on the site, and their own documentation provides the information; (b) man X, man Y and CASACIR admitted to taking and using water from Kookaburra Creek for amenities and office, regardless that they did not have the right to take and use the water under “domestic and stock”, and (c) man X, man Y and CASACIR had not applied for or obtained a take and use licence under section 51 of the Water Act, which is a legal requirement – prior to taking or using any such water.
Man X, man Y and CASACIR’s hydrogeological witness statement and their hydrogeological assessment both made it abundantly clear that there was (and is) groundwater inflow into the sump which water is taken and used for dust suppression. Further, man X, man Y and CASACIR’s own documents[11] described the use of the water and it was clearly shown that they knew that there was a known history of groundwater seepage, and that they would be harvesting groundwater, especially when they deliberately took water from Kookaburra Creek[12]. In addition, the reports identified that there would be considerable groundwater captured and used for commercial purposes – therefore proving that man X, man Y and CASACIR and the regulatory authorities all knew of the requirement for a licence from 2006, but they continued to ignore the mandatory requirement for man X, man Y, and CASACIR to have to obtain a take and use licence. Remembering that council issued man X, man Y and CASACIR’s permit on 3 March 2009, DPI issued their work authority on 20 July 2009, and man X, man Y and CASACIR commenced works at the site on or before 4 August 2009, after I contacted SRW on 27 November 2009, Trevor responded on 16 December 2009 (over 4 months after commencement of quarry works commencing) to say: “No, Casacir have not applied for a licence”. In a reply to a further email from me, on 8 February 2010 (over 6 months after commencement of works) Trevor notified me [emphasis mine] that: “I … advise that we have just received an application from the previous owner of the Quarry to transfer an existing water licence from a dam on the Quarry property into the current owners name. Please note this is not an application for a “fresh” allocation of water but an application to transfer an existing licence on property ownership transfer. This application on property transfer will be assessed in the normal way and determined” – this was a blatant, knowing and deliberate lie because Trevor made the statement that the proposed transfer was in the name of the owner of the previous quarry – the previous quarry owner was Cemex[13]. If Trevor’s claim was true, then the licence had at that time not been active for some ten years since the quarry was closed, the land fully rehabilitated, and the permit surrendered – all in the 1990s – i.e. in excess of ten years at the time of the transfer (therefore they cannot have used the subject licence for a quarry, which was presumably the purpose stated on the licence). Further, (a) the property had been sold to a farming family (the Lockett family) in 2003/2004 and the property used for agriculture (if the licence was not in the name of Lockett, then he, too, took and used water without a licence to do so); (b) if the licence was still in the name of Cemex, was Cemex aware that the proposed licence transfer was a transfer to CASACIR (i.e. a commercial competitor), and where was the proof that they were aware of that and agreed to the transfer? (c) if Cemex was not aware that the proposal was to transfer the licence to CASACIR then that approval should have been required – otherwise Cemex could be under the impression that Locketts still owned the land and may not have otherwise signed the forms – thus invalidating the transfer application. However, since the land was actually sold to Locketts in 2003/2004 (i.e. in between the two quarry operators owning it), and Locketts did not at any time own or operate any quarry on the site (or to my knowledge anywhere at all), then, if the licence was in the Lockett name (or any associated company name or names), for Trevor to make the statement that the application to transfer the licence was from the previous owner of the quarry, was for him to have deliberately lied to me and which I can only assume was an attempt to validate the transfer. Man X and man Y are the directors of CASACIR, and were the ones who bought the property in May 2006. This purchase obviously proceeded to completion without the subject licence, so for Trevor to indicate that it was an application on property transfer was also knowingly fraudulent because it would have been done at the time of transfer of land. In addition, if it was still in the name of the previous quarry owner, then there was a property transfer in between, so this reason or purpose is grossly invalid on either count. Further, on 9 February 2010 (6 months after the quarry commenced works), I sent an email to Trevor [emphasis in original]: “Please URGENTLY provide a copy of the application submitted to you in relation to the Neerim North quarry water usage, licence, dam etc (emailed preferably but otherwise fax the application for transfer of the current licence and explain the reason you were happy to have the quarry take and use the water without the required licence – since the SRW approved hydrogeological assessment which stated that the dam is fed by groundwater”. On 15 February 2010 (6½ months after the quarry commenced works), I sent Trevor the further following email: “[P]lease provide the community consultation you intend to have in regard to the application to transfer the licence – prior to it being either approved or refused. I have SRW documentation that states that SRW takes the issue of community consultation seriously and this particular licence transfer will be of significant “interest” to a number of people who are or would be affected parties”. After Trevor finally realised that I was not going to give up and that he had better take action to get a permit transferred to man X, man Y and/or CASACIR, he responded by sending me the following: “The transfer application to which you refer will be processed in accordance with SRW’s usual policies and processes. As the transfer is of an existing licence to a new landowner, and is remaining with the land, no formal community consultation process will be undertaken. However, the Authority must take into account the relevant sections of the Water Act, and in particular consider the matters set out in sections 53 and 40(1)(b)-(m). If you have any information which you would like to submit to the Authority please feel free to do so”. So, on 19 February 2010 I sent a letter of objection to SRW, stating, inter alia: “Please find attached objection. Having declined to provide me with the necessary information regarding the type of licence, the purpose stated in the licence, the party currently owning the licence or any information regarding the licence, licencee or any other details, you have made this objection more difficult. Please advise me of the status and immediately it changes. Should SRW be remiss and approve the transfer, it will necessitate us lodging a formal objection”. SRW states on its website that its community consultation process is such that: “[SRW] is committed to involving the community in licensing decisions … considers the interests of others …, identifies public concern … identifies neighbours’ concerns [and] if there is local interest we may have an open meeting of all parties”. – sadly, Trevor has proved this to be hog-wash and propaganda as far as his interactions with me regarding his protections of man X, man Y and CASACIR. The reality is that, in breach of his responsibilities under the Water Act I don’t believe he would have made them have a licence at all but for my dogged persistence and insistence – then it was he who sought the transfer (not man X, man Y or CASACIR), he who sat on it, and he who then finally completed the transfer and finally issued a licence dated 25 May 2010 (i.e. 9 months after man X, man Y and CASACIR commenced to take and use without a licence or permit to do so – and that was obviously considered satisfactory according to council and SRW’s (on-going lack of) standards. Condition 1 and 2 of the eventual take and use licence states: 1. Water must not be taken through the works if the Authority reasonably believes fuel, or lubricant, or any other matter used in connection with the works or appliances associated with this licence, is at risk of contaminating a waterway, or aquifer, or the riparian or riverine environment. 2. Water must not be taken through the works associated with the dam if the Authority reasonably believes fuel, or lubricant, or any other matter used in connection with the works or appliances associated with this licence, is at risk of being spilled into a waterway, or aquifer, or into the riparian or riverine environment”.
In spite of the fact that man X, man Y and CASACIR’s quarterly monitoring reports clearly identify that hydrocarbons are spilt around the dam (sump) and impacting the water quality, and man X, man Y and CASACIR and DPI’s own documents and/or communications identify that fuel, lubricant or other from the quarry works seeps into the aquifer and washes into Kookaburra Creek (for example): “All surface water from the disturbed areas will be directed to the primary settling dam (quarry sump) … The stored water [in the quarry sump] maintained a fairly constant level, with ground water escaping into fractures in the ground [with] sub surface water originating from the north of the road (ie within the proposed quarry development area) flow[ing] along permeable horizons towards the south trending [Kookaburra Creek][14])” – thereby proving that the conditions of the licence are not met, and are the licence should therefore be made void and it should be cancelled. Condition 3 of the take and use licence goes on to state: “The licence holder must construct and maintain bund walls around any hydrocarbon fuel driven engine, motor, fuel storage, or chemical storage used in connection with works and appliances associated with this licence, in accordance with the timeframe, specifications, guidelines or standards set down by the Authority”. However, in direct contradiction to the licence conditions: (a) there was no bunding for the hydrocarbons or fuel for 3 months, (b) it was then built it with the overflow at the bottom of the bunding, not the top, (c) they failed to build the concrete pad on which to stand the vehicles and equipment while refuelling for over a year, and (d) they failed to build the triple interceptor trap for over a year. What’s more, man X, man Y and CASACIR have a history of ignoring legislation and requirements, and they simply imply that there is no danger in spite of clear evidence to the contrary. The fact is that council, DPI, WGCCMA and SRW all colluded with man X, man Y and CASACIR to allow man X, man Y and CASACIR to take and use water illegally for many months, then SRW further colluded with man X, man Y and CASACIR by actively assisting them to obtain a licence from a third party, and lying to me about it.
The Water Act 1989 protects waterways (including Kookaburra Creek which commenced on (what became) man X and man Y’s land and flowed for the majority of its length through our property. Under Sections 160 and 219, designated by-laws make it illegal to perform work on a waterway without a permit – the belated WGCMA works on waterway application form (of which man X, man Y and CASACIR had a copy) states [emphasis mine]: “3 A person who intends to construct or carry out any works in, on or over a designated waterway must first apply to the Authority for authorisation in accordance with the Water Act 1989. Works must not commence until the Works on Waterways permit is issued”. Further, the retrospective permit also stated that: “It is the responsibility of the person issued with this permit to obtain the necessary approval of the works before their commencement: (a) from the relevant planning authority, and (b) from the Department of Sustainability and environment[15]”. In spite of this legal demand, man X, man Y and CASACIR performed a number of illegal works, including by having diverted the flow of Kookaburra Creek underground without the permission of WGCMA, council or DSE – it is also a fact that man X knew that a permit had to be applied for prior to the works, because he swore under oath in the Supreme Court that [emphasis mine]: “The agreement to work on waterways was handed down by VCAT but they said we had to apply for a permit to do so before acting on that waterway.[16]” The WGCMA works on waterway application form further states: “8. In making its decision, the Authority will take into account the views of persons who may be affected by the application”. However, there was no attempt to take into account my views – which is exactly why WGCAM did not seek to discover my thoughts or comments on the matter of polluting the flow of Kookaburra Creek, of the illegal works on it, or of its illegal deviation. The works were commenced on or prior to 22 August 2009, with further works done on or prior to 31 August 2009, but an application for some of the works already performed was not sent to WGCMA until 1 September 2009 (i.e. after the works were finished), and the permit was not given for those works until 4 September 2009 (again, after the works were finished). In fact, Adam lied under affirmation in the Supreme Court in 2013 when he testified under cross-examination then re-examination that: “It wasn’t a retrospective permit … the works have been done with the permits … our role is to ensure that works do occur with permits[17]”. There was no action taken against man X, man Y and/or CASACIR for the illegal works, or for the works diverting the flow that remained illegal because they were done where a permit was never requested. WGCMA and council were aware of this breach and refused to act – and I had to take action further in VCAT to have the reinstatement of the flow of Kookaburra Creek ordered. I then had to threaten further legal action due to the failure of man X, man Y and CASACIR to follow the timing mandated by the legally binding (but subsequently proved fraudulent) terms of settlement they signed at VCAT. It is to be noted that the representatives of the council and DPI repeatedly refused to meet me on site to observe these and other breaches. The risk to the environment and public in the breaches of legislation in this regard is that it proves that even though legislation demands permits or licences prior to commencing such works, big business can do the works without a permit or licence, and regulatory authorities will allow it – thus impacting the flow of watercourses and the environment.
The Water Act also protects ground and surface water. Based on the regulatory authorities’ collusions and agreements with man X, man Y and CASACIR, in 2009[18], VCAT allowed some of the works later performed, but clarified their stance (which man X, man Y and CASACIR and the regulatory authorities ignored). The members stated (prior to the commencement of any works on the site), that [emphasis mine]: “It was clear that the spring that feeds Kookaburra Creek will be lost as a result of the quarrying operation. The question then arises whether this loss can be replenished by the quarry operators with the water of equivalent quality to that provided by the existing spring. The applicant proposes replenishing the loss to the Kookaburra Creek spring from the water collected in the settling dam, either directly or after passing through the dam towards the southeast corner of the site, outside of the works area. The applicant proposes that this second dam should be developed as a wetlands area with the planting of appropriate species to provide for additional water treatment prior to discharge entering a watercourse in the southeast corner of the Work Authority area and ultimately the Latrobe River. It was Mr Porter’s contention … that his client had a right to the water from Kookaburra Creek, and that under the provisions of the Water Act 1989 a water licence is necessary to take and use water for any purpose other than for stock or domestic use. We find it essential that the environmental flows to Kookaburra Creek be maintained with water of the same quality as at present emerges from the spring. If the removal of the spring and replenishment of the water flow requires a water licence then it is incumbent on the applicant to obtain one.[19]” – how can clean, clear spring water be replaced by polluted quarry wastewater and drainage and still maintain the same quality as came from the spring? The hydrogeological report stated that [emphasis mine]: “In accordance with Condition No 26 of the Planning Permit, a flow and water quality monitoring program of the spring to the west of Stage 1 at the property boundary and of the north-east spring, to the satisfaction of the West Gippsland Catchment Management Authority must be in place prior to Stage 1 works commencing … Baseline monitoring (up to Stage 1)[20]”. Although man X, man Y and CASACIR falsely claimed to have not commenced the use until 13 November 2009, stage 1 works were admitted by them to have commenced on or prior to 10 August 2009, and there was no monitoring. Further, the fact that there was no monitoring while they were working in and through Kookaburra Creek additionally totally ignores the impacts of that illegal work. In addition, the planning scheme demands that works such as the quarry operation must maintain or improve environmental aspects which include water quality. In spite of this legislated requirement, council, DPI, WGCMA, SRW, and EPA colluded together to ignore the fact that man X, man Y and CASACIR failed to produce water quality assessments on the waterways, springs, and dams prior to any works commencing at the quarry, and they colluded together to allow later obtained polluted readings to become the “background/baseline” (or “control”) levels from which other levels would be assessed [emphasis mine][21]: “Hyder personnel will carry out the first stage of background monitoring at the Neerim North site, to provide background/baseline data… The quarry development is in its early stages and the data collected are to be considered as background information, …continued monitoring is required to build a sufficient background dataset, from which accurate long-term trends can be deducted, …, the monitoring provides data to build background information”. There was no care or concern about pollution and the fact that the “control” levels would be based on polluted readings – in particular, the readings in relation to Kookaburra Creek are made at the small weir immediately adjacent to the main haul road (a dusty gravel road used 20-40 (or more) times a day each way by ~40 tonne trucks as well as by vehicles and machinery) and is also adjacent to a further minor (but also frequently used) dusty gravel quarry access road – thus severely polluting the readings with dust, hydrocarbons, and the like.
DPI noted in their field report dated 2 August 2011 that: “The wetlands complex adjacent to the water dam in the south east needs to be constructed and vegetated in the middle of Stage 1 development”. Man X, man Y, and CASACIR’s work plan stated in paragraph 6.2.4 that stage 1 included: “Construction [of the] wetlands area” – but these requirements and undertakings were completely disregarded by all. In relation to the so called “wetland”, man X, man Y and CASACIR had failed to build the wetland (“wetland” being defined by them as being a ~360m narrow, shallow open drain) well prior to stage 2 commencing as demanded by the permit and undertaken by man X, man Y and CASACIR, and then, (a) after stage 2 had commenced, WGCMA colluded with council, and DPI, in allowing man X, man Y and CASACIR to use the belated supplied spring water management plan[22] to change the ~360m long open drain to a less than 100m long open “grass swale” (claimed to be on a slope between 1 to 30, but in reality, between 3.5 and 4.50) as being sufficient to change polluted quarry wastewater and drainage to be equivalent to the clean, clear spring water that used to flow out of the spring prior to the advent of man X, man Y and CASACIR. Man X, man Y and CASACIR’s work plan clearly states and acknowledges the demand for a wetland: “A requirement of the Town Planning Permit is to construct a ‘wetlands treatment area’. … To achieve this end it is proposed that the wetlands will be constructed part way through Stage 1 to allow vegetation to establish”.
A description from the internet, in direct contrast to what man X, man Y, and CASACIR and the regulatory authorities consider and/or approve of as a wetland (i.e. shallow, narrow open drains), follows: “A wetland is an area of land that is saturated with water”[23] …Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface, or the land is covered by shallow water”[24] …Water from rivers or creeks is directed into the wetland, and slowly travels through several small ponds. This lets litter, sediment and other large pollutants sink to the bottom. Water is filtered by micro-organisms and algae that grow on wetland plants[25] …Wetlands are among the most important and productive ecosystems in the world. … Wetlands provide vital ecosystem services. They supply water, improve water quality[26] …One of the most important benefits that wetlands provide is their capacity to maintain and improve water quality. When healthy, wetlands have a rich natural diversity of plants and animals. These can act as filtering systems, removing sediment, nutrients and pollutants from water[27]” – yet, over 9 years after it had to be installed, with the further and on-going collusion of the regulatory authorities, as at the end of 2021, the mandated wetland still has not been built in any form.
As part of the planning and permit processes, after man X, man Y, and CASACIR prepared and then submitted their work plan to DPI for endorsement, and then submitted their application for a planning permit to council, with council and the other authorities quite rightly needing to work together to determine if the proposal should proceed, and if so, the required conditions. However, a number of the conditions captured as part of this process significantly ignored the law and the rights of the community (and particularly us). As a result, a level of collusion became obvious to me. One such example is the collective classification of a recognised waterway as a “drainage line”[28]so as to try to minimise the perceived impacts, and imply that there was no valid use for the flow. In fact, in two emails dated 14 July 2010, in an effort to try to vindicate herself and man X, man Y, and CASACIR, Anne variously (and confusingly) said to me: “The waterway that is effectively the drainage line for the spring, and joins with other groundwater seepage and immediate surface runoff drainage, is not to the Department’s knowledge registered under the Geographic Place Names Act 1998 as named or otherwise known … A drainage line (ie. channel) is a waterway under the Water Act 1989. A drainage line is not a waterway under the Aboriginal Heritage Regulations 2007 unless registered under the Geographic Place Names Act 1998. It is not for DPI to agree or otherwise with your preference for how the drainage line is referred to but it is incumbent upon the Department to correctly assess statutory requirements in accordance with legislation and the associated definitions. Our use of the term “drainage line” for investigative purposes has no bearing on the statutory requirements and removes confusion in reporting observations” – this in spite of Anne agreeing that the Water Act states that a drainage line is a waterway, and yet she bowed to man X, man Y and CASACIR and refused to call it a waterway (hmmm, one has to wonder why)! The Water Act provides a very clear definition in s 3: waterway means—(a) a river, creek, stream or watercourse; or (b) a natural channel in which water regularly flows, whether or not the flow is continuous; or (c) a channel formed wholly or partly by the alteration or relocation of a waterway as described in paragraph (a) or (b); or (d) a lake, lagoon, swamp or marsh, being—(i) a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or (ii) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) to be a lake, lagoon, swamp or marsh; or (e) land on which, as a result of works constructed on a waterway as described in paragraph (a), (b) or (c), water collects regularly, whether or not the collection is continuous; or (f) land which is regularly covered by water from a waterway as described in paragraph (a), (b), (c), (d) or (e) but does not include any artificial channel” – in other words, not one of the categories was a called a “drainage line” (in fact, there was no definition for a drainage line), while a drainage line can be, and is called, a waterway. Anne’s reference to the Aboriginal Heritage Regulations[29] is extraordinary given that (1) while there is a definition of a “waterway”, there is still no actual definition of a “drainage line” in the regulations, and (2) there was a clear decision by the regulatory authorities to not have the Aboriginal Heritage legislation have any bearing on the quarry land – this was so as to assist man X, man Y and CASACIR to avoid having to perform an cultural heritage management plan, a plan that was necessary given that the majority of the site was a green fields and some of the land was within 200m of a waterway – so Anne actively and deliberately twisted legislation and purposes to suit herself and to continue her protection of man X, man Y and CASACIR. Further, the reference to a waterway having to be named under the Geographic Place Names shows why council actively and repeatedly refused to have the waterway properly named even when the Registrar of Geographic Names repeatedly told council to name the waterway (the true facts about that are contained in the webpage “Naming of Kookaburra Creek”).
Further in relation to water and drainage, two questions Peter said he had to answer were: “[What will be] the effect of the proposed extractive industry on groundwater and quality and the impact on any affected water uses?” and “[What will be] the impact of the proposed extractive industry on surface drainage and surface water quality?” Peter’s answer to both questions was that: “[The] site has identified watercourse and spring activity associated [with it]. Possible issues of impact upon continued water resource utilised by others and pollution of water resources. No objection from Gippsland Water, Southern Rural Water and WGCMA. Conditions from WGCMA and EHO. Limited issue”.[30] Peter identified that water was used by others (this included, and specifically related to, us) but stated that it was considered to be a limited issue in spite of man X, man Y and CASACIR intending to remove the entirety of Kookaburra Creek (together with its aquifer/s, spring and upper catchment) from our use, and in spite of SRW demanding that man X, man Y and CASACIR: *undertake sufficient investigations to ensure all springs and waterways potentially affected, whether on or off the site, are mapped and any party potentially affected by interception of water caused by the excavation is identified; [and] *determine the extent of the impact based on reasonable assumptions and how it intends to mitigate or compensate for the potential adverse impacts[31]”. Firstly, we were not specifically identified. Secondly, not all the springs that will be impacted were identified. Thirdly, there was no “extent” identified – instead, the regulatory authorities, including council and Peter, ignored the fact that man X, man Y and CASACIR did a massive under identification in that they claimed that the spring would merely be “disturbed” in spite of its intended destruction [emphasis mine]: “There is a surface spring located east of the old diary that will be disturbed during the extraction of Stage 2[32]”. Fourthly, as noted previously, VCAT had determined that any flow had to be of the same quality as that emitting from the spring prior to the quarry commencing, but this was not proposed by the regulatory authorities – instead, it was proposed that the polluted quarry wastewater and drainage be provided, and there was absolutely no compensation.
Additionally council, DPI, SRW, WGCMA and EPA all ignored the known pollution of the groundwater and surface water, as identified by man X, man Y and CASACIR in their own documents (documents presented to the authorities, VCAT and the community as absolute fact): “Experience from the previous quarry operation indicated there was minor groundwater infiltration into the excavation. This water, along with any storm water collected around the pit was stored in sumps at the base of the quarry. Stored water was used for dust suppression around the site. The stored water maintained a fairly constant level, with ground water escaping into fractures in the ground. Recent resource exploration drill holes indicate that the permanent water table is at about 395m ADH (the base of the basalt) and identified localised, perched water tables in unconfined fractured basalt aquifer at about 44m AHD an 452m AHD. When the higher level, perched water tables are intersected by existing drainage gullies the water appears as a spring. Interpretation from the geological modelling of the site suggests the relatively stable water level of RL420m in the existing quarry sump is due to its elevation being close to the spill point elevation of the tow of the basalt flow being approximately RL415m. There is a surface spring located east of the old diary that will be disturbed during the extraction of Stage 2. This spring has existed in its present form for some considerable time and the previous quarry operators in the 1970’s installed drainage controls and pipes to direct w towards Palmer Road and under the road and down the well defined south trending drainage way. The same system exists today. The hillside to the east of this gully and south of the road is relatively stable and it appears that any sub surface water originating from the north of the road (ie within the proposed quarry development area) flows along permeable horizons towards the south trending [Kookaburra Creek]. CASACIR recognises that the quarry development will affect the downstream flow regime of water and will ensure that the adjacent landowner(s) are not adversely impacted upon the loss of spring water….Water Supply. The site has no mains water supply and is therefore fully dependant on rainfall and runoff. Surface run-off water collected in a quarry floor sump will be harvested for operational purposes. There is a permanent pumping point proposed at the primary settling dam in the quarry sump. Water will be used for dust suppression at that plant, wetting down of loads, watering of roads and washing stone products when required wash water is returned to the primary settling dam for re-use[33] … Within the quarry, surface runoff from the excavation area is directed to concrete sediment traps in the pit floor by pumping or gravity drains. Any groundwater that is discharged into the pit is also collected in these traps. Water flowing down the access road table drains is intercepted by silt traps and overflow water then drains to the sediment traps. The concrete sediment traps will be designed to allow cleaning with a standard front end loader, The captured water is detained in the sediment traps for a sufficient time to allow coarse sediments to settle out. It is then pumped into the primary settling dam. The pumping rate will be the minimum necessary to maintain working conditions in the base of the quarry. As the quarry develops and extraction progresses below RL420, (see Stage 2 on Figure 5), additional sumps will be developed to collect water. This water will be pumped to the primary settling dam as required. An existing storage dam is located to the south east of Stage 1 of the quarry adjacent to Pearce Road. Water from the primary settling dam may be pumped into this storage dam for future irrigation use on the property or for distribution to immediate neighbours(s)[34]”.
Concrete sediment and silt traps were required to be installed early in stage 1. Man X, man Y, and CASACIR’s work plan stated in paragraph 6.2.4 that stage 1 included: “Construction of site drainage systems, settling dams and sediment traps” – those sediment and silt traps were not built in stage 1 and there is no evidence that they have been built in stage 2, even at the end of 2019. DPI audit dated 2 August 2011 states: “Sediment traps and concrete sediment retention structure needs to be constructed on the main pit access road by end of Stage 1” – but, as said, the traps were not installed, and the authorities did not make man X, man Y and CASACIR install them. Man X, man Y and CASACIR made the claims of interception by silt and sediment traps to make everyone believe that they were environmentally responsible; and they made the claims in spite of not intending to actually build any (you may say that I could not knew that they did not intend to build any – my claim is based upon the fact that they didn’t build any, and the fact that man X, when under oath in VCAT, swore that they had not built them 15 months after having commenced works at the site:
Barrister[35]: Do you say that there are silt traps in the haul road?
Man X: No.
Barrister: Do you say that there are any sediment traps in or adjacent to the haul road?
Man X: No.
Barrister: Do you say that there are any sediment traps on the quarry site at all?
Man X: The quarry site is a sediment trap, it all runs to the pit and the sump in the bottom of the quarry.
Barrister: Have you constructed, other than the whole quarry, have you constructed any sediment traps?
Man X: No.[36]
Further, man X, man Y and CASACIR fuelled and performed maintenance in and around the quarry pit (see the webpage “Man X, man Y, and CASACIR’s fraudulent claims about the storage of hydrocarbons and refuelling”), polluting it (and polluting the quarry sump) with hydrocarbons and other pollutants (and that was the so-called “replacement flow” that we were supposed to be happy to have instead of the clean, clear spring water that we had prior to man X, man Y and CASACIR’s quarry).
DPI and EPA colluded together to conceal the sediment leaching into Kookaburra Creek in breach of the law, in breach of man X, man Y and CASACIR’s permit conditions, and in breach of man X, man Y and CASACIR’s own repeated adamant assurances and undertakings that the site was a “closed-cycle water retention and reuse system”[37], and that there would be no such pollution ([emphasis mine]: “The proposed use and development:… 8. Will not cause detrimental impacts on surface waters or groundwaters”. In spite of having seen the rills in the bund caused by the erosion and sediment transfer, DPI and EPA claimed not be able to see such issues, but a later FOI request netted a photo taken by one of the EPA officers, taken the same day, of one of those same rills that they claimed they “could not see”!
Council, DPI, and SRW colluded together to cover for man X, man Y and CASACIR’s failures with regard to the bores: (1) the bores were not in the locations permitted, (2) were not to the depth of the proposed excavations, (3) were in locations that were subject to pollution, (4) one was in a location where it would have been known was severely inappropriate given that it was into overburden and therefore highly unlikely to provide any accurate information, and (5) man X, man Y, and CASACIR ripped out one bore without it having been decommissioned – but none of the authorities found anything wrong in any of that. The regulatory authorities’ failure to take action thereby excusing man X, man Y and CASACIR for what could potentially have been called environmental vandalism. In fact, their bore licence WLE050172 states, inter alia [emphasis mine]: “4. The bore(s) must be constructed, and where relevant decommissioned, in accordance with the Minimum Construction Requirements for Water Bores in Australia, Edition 2. … 10. [The] bore must be decommissioned so as to eliminate physical hazards [and] prevent groundwater contamination”.
Moving into stage 2
Council and DPI colluded together with man X, man Y and CASACIR to ignore the fact that man X, man Y and CASACIR’s conditions demanded that each stage be pegged out. Man X, man Y, CASACIR and DPI clearly, definitely, and adamantly, stating that they had done so: *man X’s sworn affidavit[38] dated 6 September 2010 unequivocally stated: “(46) The boundary of the final extraction area (Stage 1) has been marked by star pickets that are painted yellow”, and * DPI’s “work plan & Conditions – Assessment Protocol” dated 2 August 2011 stated under 12.1: “Stage 1 extraction has been paged”. If the pegging out had been done, there would have been absolutely no uncertainly as to where the demarcation lines between stages 1 and 2 were. Presuming that they had not lied about the pegging out, it is clear that there was collusion to cover up reality. As a result of colluding to ignore the real end of stage 1 and the commencement of stage 2, council, DPI, and WGCMA further colluded together with man X, man Y and CASACIR to ignore the fact that man X, man Y and CASACIR’s conditions demanded that certain requirements be met prior to moving into stage 2, and many of those requirements were not met (some still not met 7 years after they were required to be met). In fact, there were many conditions mandated by VCAT, all involving the various authorities’ approvals. Council, DPI, and WGCMA colluded together with man X, man Y and CASACIR to ignore the fact that they all knew when stage 1 ended and stage 2 commenced: (a) man X, man Y and CASACIR’s work plan states that: “The staged development of the quarry is presented as Figure 5 Development Plan showing Staged Development[39]”, and (b) if man X, man Y and CASACIR had actually pegged out the boundary, then they all knew when stage 1 ended and stage 2 commenced, however, if man X, man Y and CASACIR had not actually pegged out the boundary, then: (i) that part of man X, man Y and CASACIR’s work plan was a fraud, (ii) man X (with man Y and CASACIR’s later acknowledged authority and approval) swore falsely; and (iii) DPI lied. Any way you look at it, there was a cover up because man X, man Y and CASACIR had gone into stage 2 with few, if any, of the ordered requirements met and permits in place. In fact, there was correspondence between council and DPI on 21 December 2011 regarding the transition form stage 1 to stage 2, but it did not address any of the requirements that had not been met, or that needed to be met, thus further enabling man X, man Y and CASACIR to get away with doing next to nothing (if anything) in the way of compliance in relation to the transition. In an email chain dated 21 December 2011 between Peter and Bob, they stated [capitalision theirs, and spelling and punctuation as per original]: *Peter to Bob: “[She] came into the counter this morning [and] indicated that Casacir have commenced Stage 2. I said I was not aware of such, that the question of when stage 2 commences on the ground had been discussed but that I would check with you if the situation had altered from your knowledge. Hence this email. I received a response from Jack Kraan[40] to my letter after our last inspection but I was not fully satisfied it was adequate and will need to follow it up”. *Bob’s response to Peter [capitalisation Bob’s]: “At the meeting 23 September 2011 which both of our selves attended with representative of Casacir P/L and Mr. Jack Kraan, the issue of transition was discussed and resolved. Jack Kraan was to respond on this point but has not done so. In discussion with Anne Bignell she suggested that it was for Council (on DPI advice) to agree the point at which Casacir enter Stage 2 and then confirm this back to Casacir. Because there is no readily defined point of transition I proposed the following on the day. THE TRANSITION TO STAGE 2 IS COMPLETED WHEN THE FOLLOWING EVENTS HAVE TRANSPIRED. 1. Overburden had been removed beyond the line shown on STAGE 1 DEVELOPMENT PLAN FIG 3 Date 4-5-2009, and 2. The line of top face from end to end and (connected at the rear of the saw tooth sections and excluding the protruding points) has been exceeded by fifty percent of the length shown on STAGE 1 DEVELOPMENT PLAN FIG 3 Date 4-5-2009”. As a result, in addition to the failure in regards to the wetland, and the knowledge of the actual boundaries of the transition into stage 2, the authorities further colluded together with man X, man Y and CASACIR to change the definition of the Stage 2 start so as to allow man X, man Y and CASACIR to: (a) be able to have the top line exceed the boundary by in excess of 50%, and (b) not have to comply with the conditions’ demands of matters that had to be done prior to any such commencement. In fact, under affirmation in the Supreme Court, Adam admitted that: “[W]e don’t have any ongoing issues with them. The last interaction was approval of the stage 2 and since then we have had no further dealings[41]” and then he went on to fraudulently claim, still under affirmation, that: “No, the works [on Kookaburra Creek] have been done with the permits”. He made this claim in spite of the dates on the documents proving otherwise, and in spite of man X personally eventually admitting, under sworn oath, that they had done works without a permit[42]. In addition to the authorities having allowed man X, man Y and CASACIR to move into stage 2 in spite of not having met a number of conditions, even so, the authorities had not chased man X, man Y and CASACIR up to discover if they had even complied two years later, with some of the main conditions for compliance coming under Adam’s control. In spite of all man X, man Y, and CASACIR’s documents showing the bed and banks of the waterway as being the flow of Kookaburra Creek, perhaps Adam’s attitude can best be explained by his testimony before Pagone J: “[WGCMA and I] never regarded them as the previous bed and banks of the waterway[43]”
The regulatory authorities also colluded to ignore the fact that man X, man Y and CASACIR had failed to provide the spring water management plan prior to stage 2 commencing (according to stage 1 as being defined by man X, man Y and CASACIR’s Figures 3 and 5, stage 2 commenced in 2011 and the plan is dated 8 November 2012). They further colluded together to ignore the fact that man X, man Y and CASACIR had not applied for the mandatory permit for works on waterway (according to Adam in April 2013, a permit required under Adam’s supervision had not been obtained prior to stage 2 commencing, or even over a year later – in cross-examination in the Supreme Court, I asked Adam: “Is there currently an application before CMA about the works on waterway permitthat was supposed to be required before stage 2?” Adam testified under affirmation that “No, there’s no application[44]”.
They also colluded together to ignore the fact that the provision of the “flows”[45] from the filthy dam[46] to Kookaburra Creek were still are not made even as at mid 2019 (but which were required prior to stage 2 commencing). The spring water management plan even admitted that the so-called “swale” would not be constructed until mid-2014, well after stage 2 commenced, and so on (but even as at mid 2019 (5 more years later), even the “swale” was still not built).
Fraudulent claims given to VCAT as absolute fact that there would be no detrimental impacts and that there would be positive outcomes
Man X, man Y and CASACIR submitted (by way of Kraan, their general mouthpiece), the fraudulent claims to VCAT that the use and development of the land for a quarry absolutely would not cause detrimental off-site impacts by way of noise, airborne particulates, ground vibration, airblast or flyrock, traffic movements, visual impacts, agricultural activities in the area, public safety, tourism activities, or native flora or fauna, and that there would absolutely not be any detrimental impacts on surface waters or groundwaters. They also fraudulently claimed that the use and development of the land for a quarry absolutely would result in positive economical and social benefits to the local community. However, prior to the quarry, the area had been quiet and idyllic (according to the council planner, Peter), but after the commencement of the quarry, noise was highly elevated, loud and discordant – and that continued, thereby causing severe and on-going detrimental impacts. In breach of the law, the regulatory authorities did not require that dust be contained within the site, and, no monitoring was done prior to the quarry commencement – thus allowing the quarry to get away with significantly elevated dust levels, thereby causing severe and on-going detrimental impacts. There was at least one occurrence of exceedence of blasting levels, thereby causing detrimental impacts. The quarry heavy haulage and rock transport trucks often drove over double and single unbroken lines, even around blind corners and over hills, with dust from the trucks sandblasting cars’ windows and duco, and the traffic was dangerous, thereby causing significant detrimental impacts. The quarry can be seen from around the outside of the site in many locations and was an eye-sore, thereby causing detrimental impacts. The activities of the quarry[47], with the support of the regulatory authorities resulted in our land being unable to be used for agricultural purposes on an on-going manner, thereby causing detrimental impacts. In addition to the traffic issues, the site was and is unsecured in a number of locations[48], thereby potentially causing detrimental impacts. Due to the noise, dust and water issues, man X, man Y and CASACIR and their quarry, along with the support of the various regulatory authorities, stopped us from having the bed and breakfast tourism enterprise we had planned for years. The quarry ripped out a number of huge old eucalypts on man X and man Y’s land, as well as the riparian vegetation along Kookaburra Creek, all without any application or permit to do so, thereby causing detrimental impacts. In relation to the impacts on water, man X, man Y and CASACIR: (a) ripped out a bore without having decommissioned it, (b) drilled other bores in locations that were too close to pollution (septic lines, cattle defecation, hydrocarbons and the like), (c) repeatedly polluted the flow of Kookaburra Creek, (d) excavated out the bed and banks of a section of Kookaburra Creek with no care or concern, (e) then illegally deviated the flow and refused to restore it until legal action was taken against them, (f) then did not restore the flow until further legal action was threatened, and (g) committed fraud by having signed a terms of settlement agreement to never interfere with the flow ever again while fully intending to entirely destroy the upper reaches of Kookaburra Creek together with its upper catchment, its spring, and the aquifers that fed it. As far as the outrageous claim that the quarry absolutely would result in positive economical and social benefits to the local community, council agreed that the property value of our property had decreased significantly[49] because of the quarry, and, as stated, we could no longer have an agricultural enterprise on a long-term basis. The details of the real reason for the fraud are elsewhere in the website, but are additionally detailed as follows:
It is only after sitting down in a quiet space and mulling over what happened that I realised the full and real reasons for man X, man Y, and CASACIR‘s decision to treat me as they have, and to take action against me as they have. The real reason is because I had the ability to stop the quarry, and they knew it, they had to do what they could to stop me before I could stop them. I was not just a person who was calling them to account for their actions, their lies, and their prolific failures to comply with (a) legislation, (b) their conditions, (3) their own undertakings, and for the severe detrimental impacts of their works on me (and my related parties) – I was the person who could and would actually stop the quarry – it therefore became incumbent upon them to try to “deal” with me by whatever means they could. Of course, they could have bought our property as man X had suggested (but did not mean) in 2005, but they chose not to do so. Their work plan states at 6.6.1, 6.6.2, and 6.6.4 that: “Water from the primary settling dam may be used directly for irrigation, or pumped to the fresh water dam for later use as irrigation or distribution to the immediate neighbour(s) … 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 the flow regime below the weir is similar to the flow regime before the quarry commenced. … 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 the drainage line[50] south of the extraction area”. They therefore proved that they absolutely knew that they fully intended to permanently remove the flow and replace it with so-called “water” that would be from the quarry pit and sump where it collected hydrocarbons and other pollutants, and that it would then be pumped to the filthy dam they falsely variously call the “clean water dam” or the “fresh water dam”. Further, they falsely stated that the flow regime wouldabsolutely be similar to that prior to the commencement of the quarry[51], but they did not commence monitoring until many months into the quarry having commenced (i) the works, and (ii) the pollution of the water sources. Regardless of all that, they proved that they knew, well prior to signing the Terms, that they had absolutely no intention of complying with those Terms because it would mean the end of their quarry and the conservative loss of some $140 million in net benefit. It had become mandatory upon man x, man Y and CASACIR to test me to see what I would do when they illegally deviated the flow of Kookaburra Creek while performing entirely unlawful and unauthorised works on its bed and banks – they soon discovered that I would fight them, and fight them I did – taking it to VCAT under application. During the processes of this application a number of things happened: (a) man X, man Y and CASACIR stated that there was no waterway that ran through our land (even though it was noted on many other documents they had in their care and control, including in their own work plan and planning report); (b) man X, man Y and CASACIR claimed that, even if there was such a waterway, we did not have any right to use it (in spite of the Water Act 1989 being very clear on our existing rights); (c) the law states that each party has to allow the other side to access their property in order for specialists to be able to provide a proper report for the hearing. On behalf of man X, man Y, and CASACIR, Michelle Collins, their solicitor’s PA wrote to me seeking approval for their unnamed hydrologist to access our property in a few days time. In accordance with the law, I granted that permission, and their specialist, Neil Craigie, came out. His report was grossly erroneous on a number of issues, and even after I showed him where the flow of Kookaburra Creek had been illegally deviated, he deliberately avoided making note of it in his report (presumably under the instructions of man X, man Y, and CASACIR); (d) I sought reciprocal rights of entry (including in my requests information that they themselves had not provided in their request), but reciprocal access was denied. I repeatedly asked for permission for reciprocal access and reminded them that I had given them permission, and they repeatedly refused, including by the very clear absolute assertion from their solicitor on 11 May 2010: “There must have been a misunderstanding, our clients will not allow your hydrologist on the site at all”; (e) the VCAT orders were that each sides’ reports had to be filed on 17 April 2010, and I filed and served ours on that date. Because of man X, man Y, and CASACIR’s refusal to allow reciprocal access, our report was made on the basis of my specialist’s access to our property and a drive around the externals of man X, man Y, and CASACIR’s property. Later that day, I received a letter from man X, man Y, and CASACIR’s solicitor saying that it was a requirement of law under section 129 of the Victorian Civil and Administrative Tribunal Act 1998that reasonable access be granted for a person who is to give evidence in a proceeding, and that I had to provide the name, etc for the hydrologist (even though they had not provided any of that information to me about their hydrologist), and I had to give a week’s notice. Of course, I had to remind them that, as they already knew, it was now too late for any access because we had filed and served our report that day; (f) man X, man Y and CASACIR repeatedly refused to comply with VCAT letters and orders demanding the filing and serving of one of their documents that was required for the case (their hydrologist’s report), and which was a document that they had to hand well before the first VCAT demand for it (with the result that VCAT issued compliance orders against them[52]) – and they still refused to comply with the orders until further compliance orders were threatened, and to just prior to the scheduled hearing; (g) just prior to the hearing, on 30 August 2010, as the result of them hijacking the mediation for the enforcement application, man X, man Y and CASACIR changed the focus of the mediation to dealing with the water claim because they most certainly did not want to have it go to a hearing. At that mediation, man Y and CASACIR authorised and approved of man X signing a binding Terms of Settlement Agreement (“Terms”) that was very clear on a number of things, including: (i) the restoration of the flow of Kookaburra Creek in a specifically timed manner – which they then ignored until further legal action[53] was threatened (by the time the restoration was finally done, we had been robbed of the flow for 18 months from the time of the illegal deviation, and for 6 monthsafter signing the Terms) and, as a result, had been unable to operate our beef growing enterprise); and (ii) man X, man Y and CASACIR undertook to never again interfere with the flow of Kookaburra Creek. The fact is that *they had only signed the Terms to avoid the legal ramifications against them at the hearing for the consequences of their conduct, *they signed/authorised the signing of the Terms in order to make me believe that they would comply with it (and I did believe it because it was a binding document that meant our water was safe), *in a gross and blatant breach of ethics and morals, they had absolutely no intention of complying with the Terms on any sort of lasting basis, and *they then had to work even harder at getting rid of me because it meant that I could still otherwise stop the quarry. Thus, the water claim was set aside by the signing of the Terms, as was their clear intent. But their fraud was subsequently proved: (1) man X, man Y, and CASACIR failed to install the pipework within the 14 days as undertaken and required by the Terms – thereby proving that they had no intention of complying with the Terms in the short-term – then I had to threaten to take action to re-instate the VCAT action, in a letter was sent 4 February 2011 to man X, man Y, and CASACIR with a copy to their solicitor: “We refer to the Terms of Settlement of the Water Act proceeding – W28/2010 executed by each of us on 30 August 2010. Those terms provides that you would: …within 14 days of procuring such authority as is required, construct … pipe work from the culvert placed under the haul road and bund on [your land], to carry the whole of the water exiting from that culvert to the existing culvert under Pearce Road marked X on the attached Plan (“the works”). The Terms of Settlement also stated that: “The works shall be constructed and completed no later than 21 days from the date hereof”. The works have not been commenced let alone completed. The works were not done within 21 days of the date of the agreement nor were they undertaken within 14 days of “such authority as is required” to the do the works. As a result of you not doing the work we have been denied access to the natural flow of water and in particular have been prevented from running stock on our land over the last few months. Unless you construct pipe work from the culvert placed under the haul road and bund on [your land], to carry the whole of the water exiting from that culvert to the existing culvert under Pearce Road in accordance with the Terms of Settlement within 7 days from the date hereof we will regard your failure to undertake the works as a repudiation by you of the Terms of Settlement and accordingly will no longer be bound by those Terms”. As a result of the threatened re-instatement of the action, man X, man Y, and CASACIR finally installed the pipe in late February 2011 (knowing that they still fully intended to not comply with the terms in the long-term), but then council did not take any action in relation to the fact that the pipe was not installed as required by its demands (the pipe was to be hidden but it was placed on top of the land in full view). (2) In November 2010, an enforcement hearing[54] followed. At this hearing it was imperative to man X, man Y and CASACIR that they mislead and deceive the members into believing that I was vexatious and a person who just wanted to stop the quarry because I was supposed to be nasty and was unhappy about having a quarry next door[55]. Instead of dealing with my accusations of their breaches (and my ~200 photos and FOI results provingtheir breaches), man X, man Y and CASACIR turned the tables on me and made it appear that I was just out to stop the quarry by whatever means I could. This included by way of the water situation. Remembering that this was 3 months after the signing of the Terms where they signed that they were never going to interfere with the flow of water (altered to flow through the pipe) ever again, the following cross-examination took place with man X, man Y, and CASACIR’s barrister, Graeme Peake, cross-examining me [emphasis mine]:
Peake: Can I ask you, …, when my client moves into stage two of the quarry and seeks permission – and it has planning permission but seeks the Water Act permission to excavate the spring, what are you going to do?
Me: Object because that would be affecting our water rights. We have – under s.8 we have water rights to that water, so will we be objecting? Yes. Our property needs that water, we can’t have a dam, we have to have that water[56].
Peake: Then Condition 30 says again, “Prior to commencement of Stage 2 provision must be made for replacement flows into the gully to the south and to the northeast of the works authority area to the satisfaction of the responsible authority”. Now what that is talking about is when the spring is dug up that a replacement flow to the waterway, we’ll call it Kookaburra Creek for our purposes, is to be provided from the quarry land?
Me: Yes, by waste water and drainage, yes.
Peake: And that’s not consistent with a closed system either is it?
Me: No it’s not. That’s a breach but that’s not until Stage 2, in the meantime it has got to be closed.
Peake: So you allow for the fact that when the replacement flow is provided via the quarry pit dam dumping into the clean water dam, running through the wetlands and back to the waterway, that that’s okay?
Me: No, it’s not okay.
Peake: That’s not okay?
Me: It won’t be okay, I can tell you.
Peake: You can tell me?
Me: Yes, we’ll be fighting that.
Peake: If that’s what the permit says that my client is required to do, why is that not okay?
Me: Because you’ll be taking away our rights under s.8 of the Water Act to the natural flow of Kookaburra Creek.
Peake: So my client can be expecting to be back on another Water Act claim can we?
Me: I’m afraid so. We have legislated right – there has never been – you see one of the reasons why my opinion is that the Tribunal granted that is my memory of you making a statement saying there would be discussion and agreement with us and you’ve never – Casacir has never discussed it with us. It has all been put upon us that this is what you’re going to be lumped with, like it or lump it, too bad. Well, we do not agree to our water rights being taken away from us and we have every legislated right to fight it and we intend to.
Peake: And I guess that will stop the quarry from operating won’t it?
Me: Well, if it does, it does. I mean the members pointed out in – I’ve forgotten which paragraph it is now, but they said that they didn’t think that, you know, it had to be sorted out immediately because the applicant in that case didn’t think it had to be looked at immediately and said words to the effect of, if this doesn’t – you know, if it can’t cut it then the quarry ceases. I think in 124 or something of the reasons. So Casacir is proceeding on that determination, they’re running the risk, as are we.
Peake: So if my client, if it’s necessary, seeks a work on waterways licence in relation to the excavation of the spring, you’ll oppose that?
Me: Absolutely.
Peake: When my client seeks to act in accordance with the permit conditions and provide a replacement flow via the clean water dam and the wetlands you’ll oppose that?
Me: Well, part of the problem there is – well, there’s a number of problems. One, there is absolutely no guarantee of any flow, if you want to call that, I’ll call it discharge. There is no guarantee of any timing, there is no guarantee of any quantity, there is no guarantee of any quality. None of that has been determined and we’re expected to just say, okay, we’ll wipe our s.8 water rights and take whatever you kindly give us of whatever quality, quantity, timing, whatever. We cannot run an agricultural enterprise under those conditions. We can’t have a dam. We rely on the flow of Kookaburra Creek otherwise our property is useless as an agricultural enterprise for what we want it for. I don’t know what else you could use it for[57].
In spite of my pre-existing legislated rights to the water from Kookaburra Creek, man X, man Y and CASACIR instructed and authorised Peake to imply that it was entirely unreasonable for me to want to protect my water rights if it meant that the quarry would have to close. However, my pre-existing rights to the flow of Kookaburra Creek are legislated and clear under the Water Act:
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. …
(3) A person has the right to use—(a) water taken by that person from a waterway … under a right conferred by subsection (1); or (b) while it is within the waterway …, water which that person has the right to take under subsection (1)[58].
The 2008 VCAT Reasons state [emphasis mine]: “103 We find it essential that the environmental flows to Kookaburra Creek be maintained with water of the same quality as at present emerges from the spring. If the removal of the spring … requires a water licence then it is incumbent on the applicant to obtain one”. The 2008 VCAT order and the subsequent planning permit both demand that [emphasis mine]: “28. Prior to Stage 2 works a Works on Waterways Licence (under sections 160, 161 and 209, by-law 001 – Waterways Protection of the Water Act 1989) will be required.” Kookaburra Creek certainly flowed through our land, dissecting it from close to the north-west corner to close to the south-east corner – thereby giving us the legal right to the flow. The 2008 VCAT members also noted that: “102 It was Mr Porter’s[59] contention on behalf of [his clients], that his client had a right to the water from Kookaburra Creek”. This was not contradicted at VCAT and the only time it has been contradicted was when I was forced to take the aforementioned legal action against man X, man Y and CASACIR for illegally removing the flow from our property by deviating it without a permit or licence to do so. Peake’s cross-examination of me proved that they would not get their permit to destroy the spring and the flow of Kookaburra Creek and that it would stop the quarry:
Mr Peake: And I guess that will stop the quarry from operating won’t it?
Me: Well, if it does, it does.
The 2008 VCAT order and Reasons were handed down on 19 January 2009. We then had the situation where, almost 7 months prior to commencement of any works, man X, man Y and CASACIR absolutely knew that they had to get a licence or permit for their planned destruction of Kookaburra Creek. Instead of discussions with us, they consciously elected to commence the quarry and run the risk of having it shut down. In order to deal with issue, they then attacked me[60] repeatedly. They attacked me for trying to protect my legislated rights by making it seem unreasonable for me to do so, and, as stated, that I was in fact nasty, bitter and vexatious for trying to protect my rights. In fact, man X, man Y and CASACIR did their very best to have VCAT ignore the real reasons we were at VCAT in 2010 (i.e. man X, man Y and CASACIR’s multitude of breaches of: (1) legislation, (2) their planning permit, (3) their work authority, and (4) their own undertakings). Instead, they turned it on to me for demanding compliance – part of their defence was the fact that the regulatory authorities backed man X, man Y, and CASACIR and not me). In fact, man X, man Y, and CASACIR made the blatant but fraudulent accusation that assisted in later turning the members against me: “Because I will be putting to you, sir, that … when it comes to planning enforcement is probably the most unreasonable person that could be imagined and that rather than seeking to enforce the permit for the purpose of achieving the objectives of planning in Victoria and the policy outcomes sought in the Baw Baw Planning Scheme that it is part of an ongoing personal and vindictive campaign against [man X, man Y and CASACIR]. … Therefore the Tribunal can conclude that it’s actually a campaign against my client as opposed to an application based on sound and reasonable planning concerns[61].” Man X, man Y and CASACIR continued their accusations against me in their submissions: “1.4 Ultimately the [2008] Tribunal decided to grant the permit, subject to conditions. …1.10 In evidence, [she] avowed an intention to continue to bring various proceedings against Casacir [and therefore man X and man Y] in the event that it continues to try to develop and use its land in accordance with the permit. 1.11 It is submitted that this Tribunal should draw the inference that these proceedings are part of a wider and ongoing campaign that arises not out of a genuine concern that [CASACIR and therefore man X and man Y] is failing to comply with the conditions of its permit, but arises of an ongoing dissatisfaction about the [2008] Tribunal’s merits decision to grant the permit. … 2.5 [M]embers of the public (assuming that a breach of planning law is an offence of a public nature) have the power to step in and act. 2.6 Pursuant to section 117(2) the Tribunal may make any enforcement order that it thinks fit in accordance with section 119. 2.7 However, this is not an unfettered discretion. The power must be exercised for the purpose for which it is conferred, being to further the objectives of planning in Victoria by ensuring, in this case, that a permit holder complies with the conditions contained in the permit. 2.8 It is submitted that the application brought by [her] is not brought for that purpose. It is brought as a form of retaliation against the decision of the [2008] Tribunal to grant the permit and against the fact that Casacir [and therefore man X and man Y] has acted on that permit. …2.9 To this end, [She] demands an absolute compliance with every condition of the permit, as interpreted by her. It does not matter whether the relevant condition has any impact on her whether the breach is trivial or substantial …” The 2010 tribunal was swayed by the venom aimed at me and noted in the Reasons for its judgment: “20 The planning laws, including the planning schemes, are part of the public law of Victoria intended for the benefit of the public generally. Sometimes a citizen will commence an enforcement proceeding in the public interest although that may be combined with a personal or private interest. For example, the person may consider that he or she is suffering as a result of failure to comply with permit conditions inserted for that persons’ protection (whether individually or amongst others). 21 Commencement of proceedings to protect the public and/or private interest of this sort appear to us to be appropriate and within the contemplated purpose of enabling “any person” to commence an enforcement application. Of course it is always possible for somebody to commence an enforcement application for ulterior motives going beyond those legitimate ones. Motives of vengeance or to frustrate, obstruct, annoy or to compel or induce a favourable financial arrangement would all be ulterior purposes in this sense. 22 It was suggested on behalf of Casacir [and therefore man X and man Y] that motivations behind this current proceeding extend beyond a proper protection of the public or private interests and are for other ulterior purposes. … 28 [She] foreshadowed proceedings arising from an anticipated application for a licence in relation to allocation of water that will become necessary if the quarry project proceeds to its stage 2 as approved in the existing permit. Apparently her decision is already made on the basis of general understanding of what would be required without waiting for details and specifications that would enable an assessment of a specific application on its merits”.
Man X, man Y and CASACIR’s false allegations in their submissions convinced the members so that they entirely ignored the fact that I merely answered questions put to me (questions put to me for the purpose of making me appear to be unreasonable and vexatious), even though man X, man Y and CASACIR had been clear from the very beginning in all their documents, and the permit was clear, that they intended to destroy the catchment, watertable, spring and flow of Kookaburra Creek in spite of having signed the Terms and in blatant breach of the Water Act. They worked hard at turning it on to me, and they won. As stated above, the fact is that they had only signed the Terms to avoid the hearing and the consequences of their conduct – they categorically had no intention of complying with the Terms as shown by: (a) the deliberate delay in the restoration of the flow until further legal action was threatened; (b) the intention to continue with their plans of destroying the catchment, watertable, spring and Kookaburra Creek’s flow – as clearly identified by Peake’s cross-examination 3 months after the Terms were signed (entirely regardless of man X, man Y and CASACIR having agreed to the terms and signed the document); (c) they later produced a Spring Water Management Plan that identified the fact that the destruction was going to continue (entirely regardless of having agreed to and signed the Terms). In fact, they could not comply with the Terms on any lasting basis because it meant that I would have won and the quarry would have to stop if they could not “interfere” with the flow (i.e. destroy it and remove to form our benefit entirely and permanently). The reality is that man X, man Y, and CASACIR took 6 days to even apply for a permit to re-install the flow they illegally diverted (the FOI results noted that WGCMA “received” the application 3 days before it was sent to them, the regulatory authorities took little time to approve the application for the works that they had not authorised or approved in the first place (and they did so in the full knowledge that the Terms would not be complied with in the long-term). Of course, this was not the end of it – until we sold the property in February 2014[62] I still retained the right to object to the works that, according to Peake, would have stopped the quarry, and the regulatory authorities, man X, man Y and CASACIR all knew it – which meant that whenever and however they could, they had to do what it took to knock me down and get me out of the way – and they did it: they sent me bankrupt and forced us to sell and move.
It must be noted that, when their fraud recently came up in court, they did not deny the accusation of fraud, but diverted the court by saying that I didn’t have the right to make any such claims against them: “The allegation appears to be that [man X, man Y, and CASACIR] committed a fraud by [having] signed, or authorised the signing, of binding terms of settlement. [Her] allegations would appear to be that [man X, man Y, and CASACIR] never intended to perform them – and that the terms were a fraud. So far as the relevant allegations are able to be discerned [they] would appear to an impermissible attempt to re-litigate the VCAT proceeding[63]. [She] was not a party to the term of settlement and hence not the proper plaintiff in any event[64]”.[65] At each and every stage of this issue, they deliberately and knowingly lied. After the aforementioned further threats of legal action, they eventually restored the flow, but they made it very clear that they fully intended to proceed with the works. Therefore, by agreeing to and signing the binding Terms in the full knowledge that they would not be complying with its terms and conditions again proved their absolute and obvious duplicity, their lack of moral and ethical integrity in this regard, as well as their obstruction of justice, misleading and deceptive conduct, perverting of the course of justice, abuse of the processes, as well as their clear, deliberate and unmistakeable fraud – all with the backing and support of the regulatory authorities.
Mandatory protection of amenity
The Planning Scheme (which is subject to the Planning and Environment Act) declares that environmental conditions such as water, noise and air quality must be maintained, ideally be improved, but certainly must not be degraded, and man X, man Y and CASACIR submitted to as absolute fact to VCAT (by way of Kraan, their general mouthpiece), the claims made fraudulent as seen above.
In relation to noise, man X, man Y and CASACIR submitted a brochure to VCAT in 2008, telling the members that there was a specific Atlas Copco ROC D9C SmartRig silenced drill in Australia they were willing to use (the Atlas Copco ROC D9C SmartRig silenced drill), with the resultant permit condition being included: “9. Towards achieving the above noise limit, the following (not exclusive) techniques must be employed: … iii. all hydraulic rock drilling must utilise a silenced drill rig (as demonstrated in the Atlas Copco SmartRig brochure) and where necessary, localised acoustic shielding”. Man X, man Y, and CASACIR’s specialist advised VCAT that the unit was available in Australia at that time and that man X, man Y, and CASACIR had consented to use it: “6. [Man X, man Y and CASACIR have] now undertaken to use a ‘silenced’ drill rig, recently introduced into the Australian market, at the site[66]”. Further, man X, man Y and CASACIR’s environmental management plan specified that all drilling would be performed with a silenced drill: “Noise – All rock drill to utilise silenced rock drill [sic]”. However, council actively colluded with man X, man Y and CASACIR by ignoring the demand for all drilling to use the specific Atlas Copco ROC D9C SmartRig silenced drill and, instead, allowed man X, man Y and CASACIR to use a totally unsilenced drill for approximately 4-6 months, and then to use the unsilenced drill with a flimsy plastic shield many more times[67]. In fact, council wrote to man X about the lack of the proper drill, on 4 January 2010 (almost 4 months after the first drilling), and said [writing and punctuation as per original – and note how Peter assists them with the misinterpretation of what is construction and what is commercial extraction: “Council has received a complaint that the quarry has received an un-silenced drill rig on site, presumably with the intention to use such for commercial extraction of rock, with such being contrary to condition 9 of the planning permit. Part (iii) of the condition stipulates that (apart from construction activities) all hydraulic rock drilling must utilise a silenced drill rig (as discussed at the appeal hearing). Could you please respond to the allegation so that I may clear the matter up”. Man X, on behalf of himself, man Y and CASACIR, responded to council on 4 January 2010 and said [spelling and punctuation as per original]: “Prior to Christmas a Shot was marked out and Drilled ,as part of (construction) bringing the face back to vertical, making ready for (extraction) as faces were stepped in the Quarry Rehabilitation years ago. This shot was drilled with a brand new Atlas Copco F9C silenced rig. … The drill rig has not worked this year (today) and was only on site so maintenance and an inspection from Atlas Copco could take place. Before the machine is used at the Quarry next which will be an extraction shot. Atlas Copco will have fitted the mast shielding and Engine Fan Deflector, to turn this Drill into a “Smart Rig:” reducing the db by up to 10 db”. Man X[68] swore in his written testimony (his sworn affidavit) “26. The drill rig that has been used on-site is the Atlas Copco SmartRig ROCD9C – the same as the example referred to at the 2008 VCAT hearing. 27. Up to early January 2010 it did not have the ‘acoustic cover’ fitted. There was no cover available within Australia from the manufacturer. The rig was used to drill holes for blasting for construction of the pit access road and squaring up old benches during this time. These are construction activities well below the level of the bund. Condition 9 of the planning permit exempts construction activities from the need to use a silenced rig. 28. We had an acoustic cover made. This had been fitted to the drill rig fall activities since January 2010”. Man X swore in his verbal testimony:
Man X: The initial shots of the quarry, they were the F9C the one, hang on, I’ll show you the right one … We’re talking about the one without the plastic shielding on it …
Barrister[69]: And you put that shield on in January, didn’t you?
Man X: January or February, yeah. That would be right.
Barrister: So I am now at paragraph 7 of your affidavit. You say “Drilling for the access road and bench reorientation blasting was undertaken on the following dates: 10, 11, 14th & 15th September 2009” and that was before you put the silencer on the drill is that right?
Man X: That’s right.
Barrister: So, that was an unsilenced drill rig?
Man X: That’s right.
Barrister: “24th, 25th & 28th September 2009” it was an unsilenced drill?
Man X: That’s right.
Barrister: “17th , 18th, 20th, 21st, 2nd & 23rd December” unsilenced drill?
Man X: … Yeah … I think that’s in handwriting somewhere where that was in the construction phase of building the road… And that’s different levels and then we got into the extraction by September.
Barrister: You say that you started extraction in November 2009?
Man X: That’s right.
Barrister: You used the drill rig to undertake the drilling for extraction for the purposes of extraction up until November 2009?
Man X: No, that’s not correct. The, such, some of the construction of the road, not all the rock from that drilling and blasting was used in that road. Some of it was stockpiled, crushed and used as extraction after that. So, some had a two-fold effect.
Barrister: Hmmm. You took commercial rock out of the site for the first time in November 2009.
Man X: Err, that’s right, yeah.
Barrister: Um, I think you swear the 13 November 2009. Is that right?
Man X: Yeah.
Barrister: Is that right?
Man X: Yeah, that’s right. That’s when I wrote, that’s when we phoned Peter McWhinney telling home that we were starting. He’d been with us at least a couple of days before.
Barrister: What I am putting to you, … is that for the purposes of extracting rock you removed from the site on 13 November 2009 you used the unsilenced drill, didn’t you
Man X: [silence] We’ve, er, we’ve used rock that came from the derivative of a drill that is not as silenced as much as the encased one.
Barrister: Right, well, we go back, do you remember, you say you first extracted rock on 13 November 2009, sorry I withdraw that. You say you first took rock off the site on the 13 November 2009 for commercial purposes?
Man X: That’s right.
Barrister: So you would have extracted it some days before that.
Man X: Yeah.
Barrister: Right, the drill rig that you used to extract that rock – – –
Man X: Yep.
Barrister: Was an unsilenced drill – that’s what I am putting to you.
Man X: You keep referring to it as an unsilenced drill that, this isn’t a Harley Davidson, this is a brand new drill machine but it doesn’t meet the same requirement noise requirements as the, one displayed. …
Barrister: So, when you say it’s not as silenced as the enclosed one, do you recall what drill rig it was?
Man X: The initial construction phase drilling, so er, prior to the first extraction of rock off-site was used by, not the drill rig as shown because there wasn’t one in the country it was whatever the other model is.
Barrister: The F, the F.
Man X: The F9C, the one that is shown on the back of the low loader.[70]
You can see that man X is still interpreting things as he wants and claiming that (1) the use commenced on 13 November 2009, and (2) that the definition of “construction” is the opposite to that in the permit and that ordered in the reasons of the VCAT members.
Further, the conditions of the permit dictated, inter alia, that broadband beepers be used and haul trucks lined: “9. Towards achieving the above noise limit, the following (not exclusive) techniques must be employed: i. fitting all mobile equipment with broadband smart beepers that adjust beeper levels in accordance with the ambient noise environment; ii. all haul trucks operating on the site must include modification of the trays to reduce the noise contribution of rock impacting on the tray body” – but the broadband beepers were not installed, and the haul trucks were not modified, for a number of years.
Also, the DPI representative repeatedly informed me that she had performed noise monitoring and that the noise level was acceptable (two of the many such responses from her were: *15 April 2010: “I subsequently visited the site on Thursday 25/03/10 and made observations regarding discernible and audible noise at various points around the WA boundary, with particular attention to the surrounding residence and *21 June 2010: “Noise was not observed to be likely to be over limit”. She subsequently conceded that a she had personally never used a monitoring device and did not know how to use one.
The State Environmental Protection Policies (SEPPs) are subject to the Environment Protection Act. The State Environment Protection Policy (Air Quality Management) (SEPP(AQM) Protocol for Environment Management Mining and Extractive Industries (Mining PEM) in section General assessment requirements states: “A level 2 assessment is required when the proposed development is in a rural location with residences in close proximity or where a small operation is located in an urban area”. Table 1 Criteria for determining level of assessment required” clarifies that: “Medium Mine or quarry between 150,000 tonnes/yr and 500,000 tonnes/yr extraction [in a] Rural area close to residences (less than 500m from the limit of work described in the approved DPI work plan or final EES)[requires a] Level 2 [assessment]”. Section 3.4 Monitoring data required prior to conducting air quality assessmentstates: “To enable an assessment of air quality impacts through modelling an understanding of existing air quality (ie., background) in the area is required. The data requirements for each level of assessment are: …• Level 2 — Continuous representative4 24-hour PM10 and PM2.5 data for a 12-month period, representative analysis of crystalline silica (PM2.5 fraction) and heavy metal content of PM10…”, and Section 4 Operational Control Requirements states: “Results of monitoring should not exceed 4g/m2/month (no more than 2g/m2/month above background) as a monthly average”. However, the readings did not commence until many months after the quarry commenced operation: (a) they did not have any manner of assessing the dust emissions for the first 3½ months (during some extremely dusty blastings and construction works), and (b) the authorities are allowing man X, man Y and CASACIR to emit dust and other air particulates up to twice that permitted once the grossly inadequate[71]monitoring finally actually commenced. The breaches of legislation in this regard proves that even though a person has legislated rights to good air quality on their property, big business (such as man X, man Y and CASACIR) can feel it is their right to emit significant amounts of dust and air particulates, and regulatory authorities will allow it – thus causing breathing problems, water pollution and distress. DPI actively colluded with man X, man Y and CASACIR to not require air quality assessments for the mandatory 12 months prior to commencement, and this was done so as to allow man X, man Y and CASACIR to not be subjected to the legislated limits and therefore allowed them to have elevated readings. In addition, DPI colluded with man X, man Y and CASACIR by ignoring the significant dust emitted from the site on many occasions (1) shown in a number of photos I provided them with, and (2) as noted in some of DPI’s own audits and field notes – 2 such instances follow: *Field note dated 16 December 2009: “Dust was observed crossing the boundary with Pearce Road to the west of [her] residence (and dust monitor)”., and *Audit dated 2 August 2011: “Use of controls is sporadic and visible dust emissions are problematic” and the associated field note states: “Dust releases are not to cause detrimental impacts on the surrounding area and residents. Dust generated by road traffic on the pit entry road was excessive at time of audit. Instruction Notice RD421100008 has been issued in respect of fugitive dust”.
Council was fully aware, prior to Peter’s recommendation that a quarry permit be granted, and prior to the actual granting of the quarry permit, that council had a number of conflicts of interests with man X, man Y and/or CASACIR. Council’s conflicts of interest with man X, man Y and CASACIR are various, but in order to limit the main issues, the following are listed.
- Council owned some of the land that the Jindivick quarry was on, and council ignored a number of breaches at the Jindivick quarry – possibly, but not necessarily, because council owned it – there may be some other reason (such as possible collusion). There was a permit condition on the Jindivick quarry that states: “(i) an agreement under Section 542 of the Local Government Act 1958 shall be entered into with the [Baw Baw Shire Council] and shall be based on a charge of 0.45 cents per tonne per kilometre on raw material being carted to the crushing plant on Beattie Road, Tarago and on crushed material leaving the said crushing plant, but the latter shall be calculated only on a lead of 2km…” Man X, man Y and CASACIR’s work plan states: “5.2 It is anticipated that the quarry will operate with a mobile crushing plant for the first few years. The crushed product will be transported to CASACIR’s other quarry at Jindivick… 6.2.4 Stage 1 … 900,000t of moderately weathered to fresh basalt…” – i.e. a good percentage of the first 900,000 tonnes removed from the Neerim North quarry appears to be have been transported to Jindivick and therefore was subject to the above fees. The distance from the Neerim North quarry to the Jindivick quarry is around 25km – so it would appear to be in Council’s financial interests to have the stone removed from Neerim North and taken to Jindivick quarry. The then barrister for man X, man Y and CASACIR, Graeme Peake, claimed at the November 2010 enforcement hearing that this fee was merely “a road fee” and had nothing to do with the amount of material brought in. There are, however, at least two issues with that: (1) is that there is no charge for road usage for material nottaken to the Jindivick quarry and (2) it is based on the per kilometre taken to the quarry for each tonne and per kilometre and for (only) the first two kilometres for each tonne removed from the quarry! It is clearly not a “road fee”. Also, one of council’s road repairers is Quality Roads, which has one shared director with CASACIR – and two shared shareholders.
- The failure to enforce conditions or the planning scheme met council’s “satisfaction” criteria, but they demanded that we cover their costs – costs incurred because we did what they would not do. In 2011, council put in an application for costs against us (settled on at $10,000) – and man X, man Y, and CASACIR assisted them by providing the use of their barrister to get their costs for them.
- There are the contracts that council has with some of the man Y’s companies (some of: Quality Roads, Quality Roads Constructions, QR Constructions Gippsland, Quality Roads Sealing, Quality Roads Asphalt & Paving, Stabilime, Stabilco, Botrans, STD Hire), etc [emphasis mine]: “Baw Baw Shire Council are our biggest customer. We have, in days of old in the last 20 years, we probably service them to the tune of about $6, $7 million a year[72]”.
- then there is the fact that, according to the previous Stabilime Group website (of which Quality Roads is but one part), there are a lot of their employees living in the Baw Baw Shire “…we now employ approximately 200 people, many of whom live in the Baw Baw Shire Council area”. And man Y testified under oath that: “[We have] between 200 and 250 [employees][73]”.
It would therefore be in council’s interests to look favourably upon the activities of such an employer and to, perhaps, overlook such failures as compliance or perform adequate or timely works. It is also interesting to note that council personnel have been invited to Stabilime Group parties and are given gifts such as bags, …
In addition, there are the ways that we contend that council has gone against us in favour of the quarry: (a) delaying our house application, (b) refusing to name Kookaburra Creek[74] in spite of the Registrar of Geographic Names instructing them twice to name it, (c) ignoring quarry breaches that seriously and detrimentally impacted us, (d) falsely asserting at the tribunal that there were no breaches of significance in spite of not having been to the site for a number of months – and knowing that its fraudulent misrepresentations would most likely cost us the case. Peter, on behalf of council, told the tribunal that there were breaches but said that there was nothing, in his opinion, that warranted enforcement orders – this was in spite of at least 25 council conditions (as well as at least 20 work plan conditions (required to be complied with by council as well as DPI because the work plan and work authority conditions are part of the council permit)) not having been complied with.
Whatever the reason, the fact is that council determined that the quarry was far more important than the protections under the law for neighbours – they presumably made this determination on the basis of above (and perhaps other) conflicts of interest. Man X, man Y and CASACIR provided council (and Peter) with the following quotes, listing the protections: “Ensure that development is not prejudiced and community amenity is not reduced by noise emissions, using a range of … land use separation techniques[75] … To assist the protection and improvement of air quality[76] … To assist the protection and restoration of catchments, water bodies, groundwater … Ensure that development at or near waterways provide for the protection and enhancement of the environmental qualities of waterways and their instream uses[77]”. Peter himself noted in his recommendation to council that the law demanded (inter alia) that the noise environment, air quality and ground and surface water had to be protected (but he reduced the actual importance of the words in the planning scheme). Peter recommended, and council then approved man X, man Y and CASACIR’s quarry application, while knowing, and stating, that there would be significant long-term detrimental impacts [emphasis mine]: “The land is in the Farming Zone. The specific zone purposes are: *To provide for the use of land for agriculture. *To encourage the retention of productive agricultural land. *To ensure that non-agricultural uses… do not adversely affect the use of land for agriculture.[78] The SPPF also includes other policies relevant to consideration of the application. This is mainly in the environmental area with policies on noise abatement to protect sensitive land uses, air quality and water quality protection and protection of catchments, waterways and groundwater. The SPPF also has some overall guiding principles which are relevant to this consideration. Planning is to contribute to the protection of air, land and water quality and the conservation of natural ecosystems, resources, energy and cultural heritage. In particular, planning should: *Adopt a best practice environmental management and risk management approach which aims to avoid or minimise environmental degradation and hazards. *Prevent environmental problems created by siting incompatible land uses close together. *Help to protect the health of ecological systems and the biodiversity they support (including ecosystems, habitats, species and genetic diversity) … The scheme recognises the need to co-ordinate the utilisation of the shire’s natural resources with the progress of development and the need to protect the environment and achieve sustainability through management practices and an increase in the quality of life of residents[79] Whilst the area is not in a residential zone it is still important to protect the amenity of residents and the scheme requires this[80] the scheme also requires the protection of the environment, amenity, landscape values and health and well-being[81]”. As we can clearly see, council knew that our well-being, and quality of life had to be protected and, in fact, increased! Clearly, council, and Peter in particular, did not care about the impacts on others since Peter recommended the quarry and council approved it, then Peter issued the permit, and then Peter (as council’s representative) largely ignored the impacts, and refused to meet me on site at a date and time of his choosing – instead, he chose to ring man X, man Y, CASACIR and/or their alternative mouth-piece, Kraan, and ask if the quarry was compliant. Talk about putting the fox in charge of the henhouse!! As if they were going to ever admit that they were in breach – in fact, they provided documents to VCAT and the Supreme Court that stated unequivocally that they have not been in breach, have been environmentally responsible, have complied with the law, have complied with their permit and work authority conditions, and that what I had claimed was variously vexatious, defamatory, injuriously false, and misleading and deceptive – in spite of the truth being the opposite!
Council had foreknowledge that the grant of a permit to man X, man Y and CASACIR for their quarry, would ignore the mandatory protection of the amenity, and cause significant detrimental impacts
Peter was fully aware, and made council fully aware, before granting or issuing a permit, that [emphasis mine]: “The quarry will clearly result in land use conflicts … The quarry, in all likelihood will be operating for decades which contributes to the significance of council’s decision. This is long-term impact if it goes ahead[82] Extractive industry has the potential to dramatically impact upon [the health and well-being, and quality of life of the residents]. It is the physical removal of rock from the ground potentially changing the landscape, involving blasting, large quarry trucks on roads, noise, vibration, dust, fly rock, pollution issues, safety issues and so on, all on a large scale[83] The amenity of persons resident in proximity to the quarry will clearly be detrimentally affected by the quarry with this impact going to be present in all likelihood for a considerable period of time. The current sense of place could be described as almost “the edge of the world” conceptually, with a combination of being the end of the road and quite isolated, in an elevated topographical position with the landform to the south dropping away dramatically to foster this sensation. Coupled with the associated quietness and scenic qualities of the location the introduction of a large scale quarry will largely destroy this attribute. It is an attribute that is very marked in the location and likely to have been a significant factor in any lifestyle purchase choice. This is reflected in the objections received. For the residents of the dwellings to the south and west of the quarry site the psychological sense of the “nearness” of the quarry will be accentuated by its being located higher on the hill and to an extent the mounding provided to reduce the visual and aural impact of the quarry operations will accentuate this. The landscape screening may have a similar impact and will also result in accentuating the site in the landscape by creating straight visual lines defining the site. There are certainly tree-line border plantings in the area but these are generally cypresses and of lesser scale. Mostly the topographical landscape tends to blend naturally with smaller scale features outcropping therein[84]. Part of the attraction of the area and cited as such by objectors is the quietness. … One can certainly empathise with the sentiments of residents in the locality. Most people would prefer not to have a quarry in their backyard. Their objection is understandable and it is accepted that a quarry would significantly detract from their lifestyle and residential amenity, just the knowledge and physical evidence would do this. The vehemence of concern on this aspect is in part a reflection of the main focus of residents in living in the location. Again it is understandable that people have chosen to live in this location substantially as a lifestyle choice taking advantage of the idyllic landscape attributes[85]”. The recommendation permitted council to approve the application, which resulted in VCAT permitting it by way of conditions (resulting in the permit that then proceeded to a work authority, and commencement of the very long-term impacts that Peter had predicted and set about largely ignoring. In fact, in spite of Peter particularly addressing the issue of (1) the need to retain agriculture, his decisions, and subsequent actions, ensured that we could no longer run the cattle-raising enterprise we had been operating prior to the arrival of man X, man Y and CASACIR’s quarry and the regulatory authorities’ ignoring of our rights (and others’ rights), and ignoring man X, man Y and CASACIR’s prolific failures to comply with the law, with their permit and work authority conditions and with man X, man Y and CASACIR’s own undertakings given as absolute fact and truth, and (2) the need to ensure that there was an increase in the quality of life of residents, Peter and council’s very actions ensured that there was a significant decrease in the quality of life of us and others, and the other regulatory authorities worked together with Peter and council and thereby assisted in the active degeneration of our quality of life – and none of them saw anything wrong in it.
Legislation tried to put a balance into the protections of residents and quarries by putting the demand for a proper buffer. In spite of the foreknowledge of the impacts, council and DPI colluded with man X, man Y and CASACIR to cover for the fact that the noise monitoring was not performed at all locations demanded by man X, man Y and CASACIR’s permit, and most importantly, it is particularly illuminating to note that council and DPI actively assisted man X, man Y and CASACIR in ignoring the planning scheme where it demands that a clearly defined buffer mustbe identified and that the entirety of that identified buffer must be either owned or controlled by man X, man Y and CASACIR. EPA document 1518 (Recommended Separation Distances For Industrial Residual Air Emissions (replacing EPA document AQ2/86) recommends that a hard-rock quarry with blasting should have a minimum buffer from a dwelling of no less than 500 metres, but buffers were approved that were of 160 metres (to the south), and 20m (to the west, north and north-east). Council ignored the demand for a clearly defined buffer, and both council and DPI colluded together with man X, man Y and CASACIR in relation to allowing of the significant use of others’ land for buffers when, as stated, the planning scheme demands that man X, man Y and/or CASACIR own and/or control the entirety of the buffers – which they most certainly did not, and never intended to. In fact, (1) Peter quoted the requirements of the planning scheme to council [emphasis mine]: “Provision for buffer areas between newextractive industries and sensitive land uses should be determined on the following principles: *Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit. *Performance standards for the buffer area are set in accordance with requirements of the Extractive Industries Development Regulations 1996[86] or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry[87], Peter then ignored the law and told council: “Highlighting another of the objections received, Council will recognise the issue of neighbours ‘providing’ the buffer for some-one else from consideration of applications for broiler farms … Again as in the consideration of this application it is a ‘recommended” buffer distance and not a prohibition as evidence by the approval of the dwelling at 140 Pearce[88]. … A setback of less than 500 metres to a quarry does mean DPI has an involvement in any decision as would the quarry.[89] Anne lied to me about the buffer and said that: “The buffer is considered to be the area between the proposed extraction limit to the point at which performance standards appropriate to the adjoining sensitive land use are attainable and are as required by the various statutory authorities. WA1347 proposal is that this criteria is met at the WA boundary or within. This should not to be misconstrued as the proposal claiming the Boundary Setback as the buffer. The proposed buffers are controlled and owned by the proponent”[90]. What Anne said was clearly not true as shown above. For those who are unaware, a buffer is the distance from the outermost source (bunds, stockpiles, benches, faces, vehicles, machinery, equipment, roads, etc) of emissions (dust, exhaust, gases, vapours, odours, noise, ground vibration, air vibration, etc) to the outermost of impact (45dB(A), 115dBL, 5mm/sec, …). Further, man X, man Y and CASACIR deliberately and knowingly ignored the demands of the planning scheme and blatantly lied to VCAT, the authorities and the neighbours when they stated unequivocally that there would absolutely be no detrimental impacts and that there would unquestionably be positive impacts. The authorities then compounded the damage by colluding with man X, man Y and CASACIR to ignore the deceptions and the detrimental impacts, and by ignoring many of the demands of the planning scheme.
Environmental issues
In addition to the serious pollution of ground and surface water, there are 2 more issues I want to raise (from among the many):
- Man X, man Y and CASACIR’s work plan stated that: “5.3 Power and Fuel Supply. … Diesel fuel will be stored in a bunded, above ground storage tank, located near the workshop”. Man X, man Y and CASACIR, further stated as unequivocal fact in their sworn affidavit dated 6 September 2010 that: “41. Fuel for machinery is stored in an aboveground tank that is located on a bunded concrete pad. Machinery is refuelled from a bowser located on this bunded pad”. Man X (on behalf of himself, man Y and CASACIR) swore under oath at VCAT that: “There’s two rows of concrete bricks surrounding the diesel storage and that storage or dam created or the bunding created underneath the diesel tank has to be able to store the quality of diesel in the tank, which it does, that bund has also been waterproofed and, yes, it would, it is bunded”. Council and DPI colluded with man X, man Y and CASACIR to cover for the fact that man X, man Y and CASACIR had (i) failed to install the mandatory bund around the fuel tank for 3 months, and (ii) council and DPI colluded with them to cover for the fact that, whilst the bund was belatedly built, it could not contain much if any fuel given that the overflow hole was at the bottom of the bund, not at the top, and was not actually sealed or waterproofed (thereby remaining porous) – thus impacting the environment.
- Council and DPI colluded with man X, man Y and CASACIR to cover for the fact that man X, man Y and CASACIR had failed to install the mandatory concrete pad (for vehicles and equipment to be parked on while being refuelled), and failed to install a triple interceptor pad (purportedly to collect the hydrocarbons and other pollutants) for over a year[91] – thus further impacting the environment. i.e. that is the same area in which man X, man Y and CASACIR allowed hydrocarbons to travel through the factures and sump into Kookaburra Creek. In fact, Anne admitted in an email to me dated 14 July 2010, that: “1. Drainage from and above the disturbed areas of the quarry goes to the pit sump. 2. Groundwater seepage … drains to the north of Pearce Rd from where it travels under Pearce Rd and into [Kookaburra Creek] to the south”. Further, council and DPI additionally colluded together to ignore the fact that man X, man Y and CASACIR were (and probably still are) refuelling and repairing machinery, vehicles and equipment in the quarry pit and around the property instead of on the admittedly legally required concrete pad.
Further legal issues
The quarry permit came with many conditions. These were repeatedly breached. When I was forced to take action in VCAT to seek enforcement (because the regulatory authorities refused to do so), the council officer initially declared conditions were principally being met. Before the VCAT members, he absolutely minimised the breaches and put them down to basically one: the regimentation of plantings on the land south of the work authority site. He ignored the fact that he elsewhere noted that (a) dust standards were a failure, (b) Neerim North Road was not maintained or repaired, (c) community consultation was not as required according to the permit, (d) most of the landscaping being regimented in spite of the demand for non-regimentation, (e) that there were areas of landscaping not done at all, (f) that plants that had died had not been replaced. Peter even admitted at the Supreme Court under oath in 2013 that: “[W]e didn’t want to specifically take action against Casacir” – so that explained his attitude to man X, man Y and CASACIR’s multiplicity of breaches, and ignored the fact that he had repeatedly failed to personally inspect the quarry site in relation to the breaches, but had merely asked the quarry operators if they were in breach or not, and took them at their word. His unverified opinion was taken to be fact by the VCAT members. Later FOI results provided the proof that (i) Peter knew that a number of the conditions were not being complied with and that (ii) he had therefore deceived the member at VCAT. Further, DPI also colluded with man X, man Y and CASACIR by covering for the fact that they failed to enforce conditions. DPI produced a document to VCAT that stated: “This submission does not comment on the merits of the application in dispute between the parties” – at an enforcement hearing! And she later affirmed in the Supreme Court that: “We have no concerns other than normal regulatory issues across any of the other sites managed by Casacir, so, no, no real concerns, no. … Neerim North quarry, like all quarries, from time to time will have small regulatory issues. It’s very rare that there’s a perfect site but nothing of the ilk that will warrant serious regulatory enforcement. We usually manage these issues when they arise by bringing them to the operator’s attention, voluntary compliance usually follows and that’s been the case at Neerim North[92] … Dust is a regulatory issue constantly for all sites, all quarry sites. Neerim North has not exhibited anything more extreme than any other site and it has been managed. … When we have been present on the site, when we have done spot checks, when we have looked at dust monitoring reports, for example, we haven’t seen anything that’s exceeded the regulatory requirements”[93] – both her comments were in spite of a number of DPI audits, field notes and emails detailing a number of many on-going breaches, and in spite of the fact that dust had been of such an issue that a s110 Notice had had to be served on man X, man Y and CASACIR! One has to then look at the fact that Anne now has her own company[94] that acts for mining and extractive industries – was she setting things up for a favourable support?
The MRSDA in sections 77I. 77J and 77O required that the planning scheme must be complied with and that a failure to comply would result in a cancellation of the quarry work authority, and that, without the work authority, the planning permit would also fail:
77I Extractive industry work authorities … (2) The Minister may grant or refuse to grant an authority to a person (who has applied for the authority) to carry out the extractive industry specified in the authority on the land specified in the authority. (3) The Minister must not grant an authority under subsection (2) unless he or she is satisfied that the applicant has— … (c) complied with any relevant planning scheme and obtained any necessary planning permit under that planning scheme; and (d) obtained all necessary consents and other authorities required by or under this or any other Act.
77J Conditions of extractive industry work authorities (1) The Minister may impose conditions to which an extractive industry work authority is to be subject, including but not limited to conditions about— … (c) the protection of the environment; (d) the protection of the amenity of the area; (e) the protection of groundwater; (f) ensuring the safety of the public.
77O Cancellation of an extractive industry work authority (1) The Minister may cancel an extractive industry work authority by instrument served on the holder of the work authority if at the end of 28 days the Minister is satisfied that the holder— (a) has not substantially complied with—(i) this Act or the regulations; or (ii) any condition to which the authority is subject; or (v) any relevant planning scheme or planning permit; or … (c) has undertaken work on the land other than in accordance with the work plan”.
In order to comply with legislation, the work authority should now be cancelled and the planning permit should therefore be withdrawn.
Further conduct of the regulatory authorities
In relation to additional failures of regulatory authorities to conduct themselves in a proper manner by acting in good faith:
I obtained under FOI Peter’s file notes dated 6 September 2011 relating to an allegedly “surprise” compliance visit regarding observation to be made by DPI and council (punctuation as in the original): “Following up from Bob Duncan, DPI’s advice in relation to his inspection we arranged that I would accompany him on his follow up inspection this morning organising to meet on site at 10.00am. Bob had been to the Mt Speed Quarry before and was a bit late. One of the men at the quarry rang [man X] to let him know I was there and that Bob Duncan was meeting me. Bob turned up. His visit was a “surprise” visit. [Man X] came up from Trafalgar but whilst we were waiting Bob drove me around the site”. They were to do a “surprise” inspection, and then did everything they could to ensure that it was not a surprise at all – therefore, the noise would have been lowered and the dusty activities minimised so that my claims of noise and dust were made out to be false – this is another clear breach of public responsibility and duty that borders on dishonesty and corruption.
Council and DPI both repeatedly refused to meet me on site[95] in order to discuss the reality of the situation, preferring instead to rely upon the word of man X, man Y and CASACIR as to their compliance. In fact, Anne (of DPI): *for a period of 9 months, continued to insist that the water still flowed where it had flowed prior to man X, man Y and CASACIR’s illegal works (including the illegal diversion) – it was only when I accused her of not acting in good faith that she changed her tune and agreed that the flow had been (illegally) diverted; and *repeatedly fraudulently claimed to have monitored the noise, and refused to tell me what unit she had used, where she had used it, for how long she had used it, the dates upon which she had used it, and the readings she had discovered. Anne repeatedly tried to fob me off by such as provided in her email of 2 December 2009: “There is no requirement to furnish investigative information to you directly or to have to “prove” to you to your satisfaction that our actions are justified”. In other words, she could claim to have done proper readings and taken my allegations seriously without having in fact done so. The next day I responded with the following: “Firstly, it has taken months of me asking you for noise reading details from 1st September, with you avoiding my very direct and clear questions. Now you are stating that “there is no requirement to furnish investigative information”. So can you now address the following topics: 1. If this is your response to my requests for details, why have you failed to inform me of your position from the outset, rather than putting me in the position of having to repeatedly ask you? 2. Upon what basis are you claiming that results from investigation into claims can be withheld from the concerned party? It seems reasonable to me, that if I am claiming excess noise, you would furnish me with results to prove otherwise. 3. Even if you are refusing to provide the actual measurements, I am still seeking clarification as to where you took the readings, for how long, and what equipment you used. Or is your refusal to answer even that because you merely listened rather than taking precise readings? 4. Even if you are not required to provide readings (and I am questioning that position as per the second point above), you are not saying that you are not allowed to do so. So I am asking, again, for the readings. Or are you refusing to provide them even though you may provide them if you choose?” She repeatedly refused to respond, so I came back with my repeated request for information, on 15 December 2009: “I would like the following information regarding those and only those readings: 1. the locations of each of those readings (on 1 September), and 2. the readings for each of the locations (on 1 September), and 3. the length of time for each of those readings (on 1 September), and 4. the type of unit used for each of those readings (on 1 September)”. After many months of claiming to have done proper investigations, refusing to provide me with this information, and telling me that she didn’t have to provide the information (and after a number of FOI requests having netted nothing), she finally admitted during a community meeting that she had not used a monitoring unit and did not actually know how to use one, but she had just “listened”. I made the following notes regarding what happened at the community meeting: “(a) it was identified at the meeting but was not noted in the “record”, that significant time was spent on the contention that DPI had provably not taken the noise monitoring seriously; (b) it was identified at the meeting but was not noted in the “record”, that Anne had previously and repeatedly, misled the questioner (me) by inferring that she had performed noise monitoring when she had not, and it was identified but not noted in the “record” that she just “listened” to the noise to assess whether it was within the limits according to her; (c) the “record” did note [emphasis mine] that Anne admitted that she was “not qualified to do the testing”, but the “record” failed to state or clarify that the testing she said she was not qualified to perform was the simple operation of a monitoring unit. It is also not noted in the “record” that when Anne was asked at the meeting how loud 45dB(A) was that she was unable to say; (d) it was identified at the meeting but was not noted in the “record”, that in response to Anne’s implication that EPA had been out a number of times, it was identified that EPA have, in fact, only come out once, and that they did not perform the monitoring for an Leq at any location; and (e) it was identified at the meeting but was not noted in the “record”, that DPI have noted in field reports that EPA should be required to perform noise monitoring in relation to certain activities but that this has not been done”. Again, why was Anne so willing to be so repeatedly deceitful about having monitored the site when she clearly and admittedly had not done so, and why was she so willing and determined to cover for man X, man Y and CASACIR? How could she possibly know whether or not the noise was over the limit? It is my opinion that her conduct was grossly incompetent, misleading and deceptive – and that she was certainly acting in very bad faith and on behalf of man X, man Y and CASACIR. Further, when asked under cross-examination at the Supreme Court: “How many times have you attended the site, the quarry site, with an acoustic monitor to actually monitor the site, please?” Anne affirmed: “The only time we have appeared with an acoustic monitor was with EPA. …Yes[96]”.
Man X, man Y, and CASACIR’s first work plan needed to be unendorsed, amended, and re-submitted, in order to remove ludicrous inclusions that, for example, water flowed uphill (so as to claim that there would be no-one impacted by the intended and later occurring illegal works on Kookaburra Creek), and claimed that land in the erosion management overlay would not be disturbed – land where a large dam was to be built (I would have loved to knowhow they could build a dam without disturbing any land!). Anne claimed the need for a new work plan was due to the fact that we had a new house when that house had no bearing on anything given that our new house was even further from the proposed quarry than the old house and was not on land owned or controlled by man X, man Y and CASACIR (by law they had to own or control all land that was within their buffer – but did not do so). In a letter to council dated 20 August 2007, Anne stated: “it has recently come to the attention of the DPI that construction of a dwelling has commenced[97] opposite the WA1347 site. As a consequence the DPI will seek further information form the proponent Casacir Pty Ltd to take into account any potential impacts on this new dwelling. Thus the DPI wishes to advise that the endorse proposal has now been unendorsed”. In addition, she wrote to man X, man Y and CASACIR in a letter dated 12 September 2007 stating: “I refer to my telephone conversation with you on the 20 August 2007. I advised you that the Work Plan proposal for WA1347 (previously endorsed by the Department of Primary Industries (DPI) on the 23 January 2007) had ben unendorsed by the DPI, due to the changes circumstances arising from the construction of a new dwelling opposite the proposed quarry”. This implied that DPI had not had any previous knowledge of our application and dwelling, which was false given that: (a) we submitted the application for our house to council on 9 October 2006, while man X, man Y and CASACIR did not submit their first work plan to DPI until 27 October 2006; (b) man X, man Y and CASACIR stated in that same work plan that we had a dwelling in our property already: “7.1. The nearest sensitive receptor is 140m from the southern boundary”, (c) council referred our application to DPI for their opinion prior to granting it; and (e) well prior to council granting our application, after being sent a copy of our application under referral, DPI sent me an email dated 9 November 2006, containing the following: “In relation to the application for Work Authority 1347, I understand that you currently have an application with the Baw Baw Shire Council to construct a dwelling close to boundary with the proposed extractive industry. Obviously, if there was a suitable location for the dwelling on your property further away from the proposed quarry that would be preferred. However, DPI has advised Council that it has no objection to the application for a dwelling. The proponent for the extractive industry application will also need to demonstrate that they will be able to meet the relevant performance standards at the proposed dwelling location” – this was prior to the first work plan being endorsed and DPI would have demanded the changes to the work plan at that time (prior to endorsing it) if the new application was the problem, but only required the changes to the work plan when the lies were shown to them. The reality is that Anne (1) just did not want man X, man Y and CASACIR to be caught out in their bizarre lies and (2) she did not want to look stupid for the work plan having been endorsed by DPI with such bizarre lies.
Councillors held a closed meeting on 24 January 2007 with man X, man Y and CASACIR in order hear them to tell of the impacts of our proposed new house on the proposed quarry (and to try to stop our new house from being built) and refused to allow me to speak of the impacts of the proposed quarry on us.
Prior to accepting Peter’s recommendation to grant a permit, council was also fully aware that the information proved by man X, man Y and CASACIR was flawed, with inconsistencies and contained errors: “There are disparities in [the] information provided.[98] … The objections are quite correct as the detail of the application reports is flawed in a number of places. This does not build confidence in the assertions of compliance with guidelines … The use of modelling is flawed and the results would be expected not to be exactly reflected by reality …. The plethora of errors and inconsistencies in the various reports forming the application pointed to by the objectors seems overwhelming[99]. … Numerous examples of errors and inconsistencies in the application reports and plans, lack of perceived pertinent details, changes of details between the reports etc are cited. It is alleged this is a combination of incompetence and deliberate attempt to misinform on the real impact of the proposal[100]. … The objections emphatically … point to the errors and inconsistencies in the application as evidence that the technical basis of the application is seriously flawed and the proposal should be rejected[101]” – and this was almost a year after an email from Peter to me dated 13 July 2007: “Some of my requests have not been responded to and some of the information raises further issues”. But council (and Peter) ignored all the acknowledged errors and went ahead and decided to grant a permit to man X, man Y and CASACIR anyway – and the fact is that man X, man Y and CASACIR’s documents have proved to be vague, inconsistent, contradictory, and, in some instances, outright knowingly and deliberately fraudulent – arguably making at least some of the claims in them subject to fraud.
In spite of Peter’s seeming even-handedness in stating: “The scenario of allowing the quarry to set up and then to have to close it down because it can’t comply is almost as untenable as allowing it to continue to breach the guidelines and unreasonably impact upon residents’ amenity because it can’t comply after having allowed it[102]” – while sounding good, it was actually an outright lie because council seemingly did everything it could (principally by way of Peter)[103], to allow man X, man Y and CASACIR to not comply with legislation, with their permit and work authority, or with their own undertakings (made as truth when many of the undertakings were actually lies), and to impact neighbours to a significant and on-going, extent.
In spite of VCAT demanding that man X, man Y and CASACIR pay for road repairs and maintenance on the Neerim North Road: “Prior to commencement of the use the applicant must construct Neerim North Road from the end of the existing sealed pavement to a point at least 5 metres past the proposed entrance to the quarry in accordance with plans and specifications approved by the responsible authority. The works will generally involve the construction of a 6.0 metre wide sealed road pavement with 0.9 metre shoulders, roadside table drains and crossroad culverts as appropriate. The applicant must maintain Neerim North Road from the time quarrying operations commence, with the responsible authority to be notified in writing of the date thereof. The cost of the maintenance work shall be based on quotations provided by Council’s road maintenance contractor for routine maintenance works or by contractors who have been awarded contracts[104]”, council bowed to pressure from man X, man Y and CASACIR and only required a contribution – this was based on the lie from man X, man Y and CASACIR that the road had to be brought up to standard before they would take over repair and maintenance of it (man X, man Y and CASACIR claimed that the road was not in a suitable condition for them to take it over). This was in spite of the fact that their own specialist had claimed that: “The proposed quarry can be appropriately accessed by the existing entrance off Neerim North Road and surrounding road network without creating any adverse safety, capacity or operational impacts[105] … the traffic volumes along Neerim North Road are well within the capacity of the road[106] All roads are in good condition and are well constructed … The road network has the capacity to safely and efficiently cater for the expected future increase in truck and car generation, which will be similar in scale as to when CSR Readymix were operating the quarry[107]. Most of the objector statements, including those submitted to VCAT as part of an Application for Review, raise concerns relating to the physical construction of …Neerim North Road and [its] inability to carry the anticipated traffic volumes from the proposed quarry. … The Engineering Department of the Shire concurs with the assessment outlined in this evidence statement that the roads previously catered for quarry operations with no safety or capacity issues, and that the road infrastructure including the signage and line marking is of an adequate standard to cater for the expected traffic volumes[108]. The proposal to reopen the quarry on the subject site is expected to generate a level of truck and car traffic that can easily be accommodated within the existing road network from both a safety and capacity perspective[109]”. Council engineers claimed that: “[Neerim North Road is] of sufficient standard to cater for the increased usage. … Neerim North Road is constructed to a standard that is quite capable of catering for the increased traffic flow as a result of the proposed quarry operation … recognising the need for some minor improvements for safety along Neerim North Road and the need to place controls over trucking activity both Neerim North Road[110]”. Man X, man Y, and CASACIR actively denied that they used the road prior to the community meeting on 21 October 2009 (in spite of commencing the use of the road in 2006 for their heavy haulage):
Question by community member: The sealed section of the Neerim North Road is deteriorating, who will repair it?
Kraan: Currently the road is not used for quarry purposes therefore you need to speak to the Council.
As you can see, Kraan (on behalf of man X, man Y, and CASACIR, with man X seated next to him) are more than wiling to lie to the community, and they did so in front of a number of regulatory authorities, including council and DPI – for example, at a community meeting held 5 April 2011, the following discussion took place:
Me: spoke regarding the road situation asking whether Casacir’s road specialists got it wrong by stating that the roads were in satisfactory condition for quarry truck use. She stated that the roads have actually failed due to the trucks from the quarry, stating that before Casacir came the roads didn’t need maintenance.
J Kraan: responded that the advice received from the specialists and Council was that the Neerim North Road was satisfactory for quarry truck use.
– hence, again on behalf of man X, man Y, and CASACIR, Kraan agreed that the road had been in satisfactory condition for truck usage when they took it over, and at no time prior to man X, man Y and CASACIR destroying parts of the road by the frequent use of very their heavy haulage did man X, man Y and CASACIR complain about the condition of the road. The fact is that (as admitted by council and man X, man Y and CASACIR’s own specialist, and now by Kraan) the road had been in good condition prior to man X, man Y and CASACIR using it for heavy haulage transport of (inter alia): hydraulic drills on many occasions, multiple large excavators; dozers; graders; scalping, crushing & screening plants; sieves; haul trucks; front-end loaders; conveyors; chutes; water carts, in addition to the frequent use by vehicles of many sizes – but man X, man Y and CASACIR claim that they should not have to repair the destruction of various parts of the road directly caused by their own usage (and council has largely bowed to the unreasonable demands of man X, man Y and CASACIR). When asked at the 16 July 2013 community meeting if man X, man Y, and CASACIR were going to pay for the road repairs, they answered that: “Approximately one quarter is being paid for by the council, the balance is being paid for by Casacir, I don’t have the exact figures. … the quarry was responsible for the ongoing maintenance, not for the repair of the road. But the quarry has come to the party and will participate in repairing the road because it was for everyone’s benefit. The balance of the road will be repaired on the same basis over the next five years as the conditions dictate. The bits of road that have been repaired now are ok but since the last meeting there have been other bits of the road that have been torn up a bit further up (the road), so what is the time frame now before these bit of road get repaired. … Essentially maintenance is keeping it at a standard that it is. Within the roads legislation is there are two definitions, maintenance is filling potholes, cracks, grading shoulders and those sorts of things as I understand it whereas repairs is where you actually rip up and replace the road which is what has happened in this case. The road has been ripped up, replaced and enhanced then sealed, so that is the difference between the two”. Man X, man Y, and CASACIR’s reply entirely ignored the fact that the planning condition 34 stated [emphasis mine]: “[Man X, man Y, and CASACIR] must maintain Neerim North Road” – in other words, the road had to be maintained by man X, man Y, and CASACIR in the condition it was in prior to their trucks destroying parts of it. However, bending to man X, man Y, and CASACIR, a council representative replied that [emphasis mine]: “I think the commercial arrangement isvery good, very advantageous for Council. Our view is to see, oversee the road over the next few years. The length of road is 4.9km, there is a section 800m from the gate outwards that will receive a further seal on it. There is approximately 1.3 – 1.5km’s that has been repaired at the moment that leave’s the balance of 2.8km’s left in between the various sections that have been repaired. What we plan on doing is too basically, as Jack said, carry out further works at those locations based on need. As well as that the ongoing maintenance will still continue on that length of road in accordance of how we manage our road maintenance planning obligations. What we will look at is the sections of road that have been repaired and further needs over the next few years and monitor needs required. … To be honest there are couple of short sections we are managing them, talking to quality roads and weare going to repair sections going from old section to repaired section”. I believe this split payment was because man X, man Y, and CASACIR refused to maintain the road in the condition it was in prior to the commencement of their use of it, and because they declared in a letter to council dated 21 October 2010 that they would only contribute $5,000 that year to the costs of the road and not pay for all of it in spite of the legal demand that they do so. Council ignored the fact that they had repeatedly told man X, man Y, and CASACIR to repair the road and then continued to ignore the fact that they refused to do so, so council backed down and paid for some of it by way of ratepayers’ money (it is very clear as to who is in charge).
Peter claimed to council that: “The impact of a development proposal on property valuations is not generally an issue considered in planning law though clearly important to property owners[111]” – clearly it was not important to council, and to Peter in particular, who, although the council’s manager of statutory planning, ignored the planning scheme’s requirements that in any planning application needed to take land values into consideration [emphasis mine]: “In considering a proposal to … develop agricultural land, the following factors must be considered: * …The impacts of the proposed … development on the continuation of primary production on adjacent land, with particular regard to land values…[112] Impacts on the continuation of primary production on adjacent land, with particular regard to land values[113]”. Thus, Peter again ignored the demands of the planning scheme, and clearly lied to council – all so he could justify his support for man X, man Y and CASACIR and their quarry. In fact, this meant that either Peter didn’t give a hoot about losses to others, or that he clearly was not conversant with the planning scheme. However, what it did show was his disregard to the rights of neighbours by the severe detrimental impact on others, which clearly met Peter and council’s “satisfaction” criteria. In fact, council later lowered our rates with the value dropping by approximately 21% in recognition of the negative impact having a quarry in such close proximity had on our property value (but this did not take into consideration the losses due to Peter and council allowing the loss of the natural flow of water when man X, man Y and CASACIR stole our water). In our opinion the 21% rate reduction did not reflect the full loss of property value and certainly failed to provide allowance for the severe negative impacts as previously noted. Nonetheless, council dropping the rates was an explicit recognition of some of the loss caused by the material mistakes of Peter’s lack of oversight of, and requirement for compliance by, man X, man Y and CASACIR, and of Peter and council in actually allowing the quarry. In 2014 we had to sell the land given that we could not operate an on-going cattle enterprise and could not put up with the detrimental impacts that the authorities had allowed and assisted in man X, man Y and CASACIR forcing on us – the property sold for an actual loss of at least 43.45%[114]. Yet this significant loss of our property value obviously met Peter’s “satisfaction” criteria.
Council colluded with man X, man Y and CASACIR to ignore the VCAT members’ clear directions as to the definition of when “use” commenced, and the fact that the “use” had actually commenced on 10 September 2009 – council allowed man X, man Y and CASACIR to claim that the “use” had not commenced until 13 November 2009, thus allowing man X, man Y and CASACIR to bombard us with an additional 2 months of elevated noise[115] – this was done in spite of: (a) the VCAT orders stating: “There was concern about defining the construction period. Mr Goddard’s suggestion was that the construction period should be activity on site that does not involve product going out the gate. We are of the view that the condition should be more specific and refer to ‘any activities that are not part of the process of extracting, drilling, moving, processing (including but not limited to rock crushing or breaking) and transporting rock’”, and (b) man X, man Y and CASACIR’s permit condition 10 clearly stating: “‘construction activities’ are any activities that are not part of the process of extracting, drilling, moving, processing (including but not limited to rock crushing and breaking) and transporting rock”. In other words, VCAT and the permit dictate that ‘any activities that are part of the process of extracting, drilling, moving, processing (including but not limited to rock crushing or breaking) and transporting rock’ are “use” activities – but council worked with man X, man Y and CASACIR to allow use activities to be performed under the guise of “construction” and therefore allowed them to have a higher noise reading for a much longer time period; and having been told on 6 October 2009 by Kraan (man X, man Y and CASACIR’s general mouthpiece) that the use had commenced much earlier: “[Man X] is intending to blast further for the access road construction this Thursday, weather permitting. He also proposes to clear an area at the base of the old pit and bring in a portable crusher. The intent is to crush the existing shot rock and begin to sell it. This will not involve further blasting etc. It will basically involve the trucking of a small amount of crushed rock off-site, but only if there is surplus material. This may or may not occur prior to the 21st October. Casacir have or will have met the conditions in the permit prior to taking any crushed material off-site. Hence there will be no impediment in the planning permit to removing material off-site. While this activity is technically extractive operations, it is not full blown extraction”. In fact, man X, man Y and CASACIR swore in their affidavit dated 6 September 2010 that: “Drilling fraudulent misrepresentations the access road and bench orientation blasting was undertaken on the following dates: *10th, 11th, 14th & 15th September 2009 … Blasting occurred on the following dates: *18th September 2009…”. Further, man X, swore in his affidavit (later admittedly approved and authorised by man Y and CASACIR) that: “(10) The surplus rock not used for the pit access road was transported to the Jindivick quarry for further processing. Rock was first transported off the site on the 13th November 2009. As this was intended for commercial sale we deemed this to be the beginning of commercial extraction. Construction activities we continuing and ongoing within the quarry at this time and therefore there is an overlap of construction activities and extraction activities. (11) I rang the Shire of Baw Baw on 13th November 2009 and left a message for Peter McWhinney (Manager Statutory Planning) that we intended to begin to take rock off the site beginning that day. Mr McWhinney was aware that this was about to occur as a result of the joint site inspection undertaken on 10 November 2009. At this inspection, Mr McWhinney indicated that in his opinion, the conditions of the planning permit were being complied with. Mr Kraan wrote to the Council on 2nd December 2009 confirming that cartage of rock from the site had commenced on 13th November 2009”. Man X (on behalf of, and with the approval and authority of, man Y and CASACIR) also swore under oath at VCAT that [emphasis mine]: “Some of the first rock was carted out off site[116]”. Man X, man Y and CASACIR twisted matters and made their own interpretations and decisions to ignore the VCAT and permit descriptions – however, the real “use” commenced on 10 September 2009, not 13 November 2009 as later claimed and accepted by Peter on behalf of council in spite of Peter having written the permit conditions.
Council and DPI colluded with man X, man Y and CASACIR by ignoring the fact that man X, man Y and CASACIR were working to the east, outside the allowed area – an area where they were not allowed to work. They told man X, man Y and CASACIR to remove fill that had been placed illegally in the eastern area: (a) DPI in their field report dated 1 August 2011 [underlining in original]: “Condition 2.1 Overburden placed on the east side of the pit will need to be removed. Overburden placed onto top of old dump site on the ease side of the pit above the water dam mustbe removed”, (b) council in file note dated 6 September 2011: “The high ground to the east of the work area and within the Works Approval has a large, flat mound of soil stockpiled and Bob said there was another pile around towards the exiting clean water dam”, and (c) council sent a letter to man X, man Y and CASACIR dated 6 January 2012: “What has happened in relation to removal of the overburden stockpile at the eastern end of the pit? Has it been removed and where to?” The regulatory authorities then ignored the fact that man X, man Y and CASACIR put the overburden in that location (1) in direct breach of man X, man Y, and CASACIR’s permit conditions, (2) because it was purportedly too wet (yet they continued to excavate all over the site in the same weather conditions, moving other overburden and soil, and rock and stone around). Further, they claimed they would remove the material in the next week (letter from Kraan (on behalf of man X, man Y, and CASACIR) to Peter dated 4 November 2011: “Stockpiles at eastern end of pit – Overburden placed here when conditions were too wet to move elsewhere. This will be removed to the south west bund area when site conditions suitable”; and letter from Kraan to Peter dated 20 January 2012 “Overburden stockpile at eastern end of pit – Overburden placed here when conditions were too wet to move it to its final location. This is to be removed to the south west bund area. Anticipation that will begin relocating overburden next week).” Man X swore under oath (as authorised and approved by man Y and CASACIR) to the following, proving that Kraan lied about why the material was there: “The haul trucks have been used on site up until now including now are 6 wheeled drive articulated dump trucks for the sole purpose of moving overburden. They are not meant to be carting rock, they haven’t got the bodies on them to handle rock and they only handle wet slippery muddy conditions, that’s what they are designed for and that’s what we used them for”.The fact is that man X, man Y, and CASACIR had no fear of having put significant overburden where it was because that was where they wanted to put it, irrespective of what they were allowed to do, and they did it in the full knowledge that the regulatory authorities were only making noise in telling them to move it and that there was actually no need to move it because the authorities must have been in their pockets: e.g. the authorities then further colluded with man X, man Y and CASACIR by ignoring the fact that man X, man Y and CASACIR did not remove the material the next week, and still have not done so 7 or 8 years later. In fact, yet further significant amounts of fill and resource have been placed in the same location (where it too remains).
Anne of DPI colluded with man X, man Y and CASACIR by accepting defamatory comments about me when man X referred to me in a fax to Anne dated 4 November 2009 as “that mad woman” (after I had simply gone to the site to ask why they were working on a public holiday in breach of their permit conditions: “Anne, please be informed that once again that Mad Woman has been walking around our site at Neerim North – Directing our workers to stop work as they are in breach of sound limits and are working on a Public Holiday. … can you help?”)”. Anne’s response was to tell me by email on 12 November 2009, that [emphasis Anne’s]: “From discussions with CASACIR, it appears that there was genuine confusion about the status of the Cup Day Holiday. This year is the first time that Cup Day has been a declared Public Holiday in the Baw Baw Shire and CASACIR had not realised that this was the case. The Shire agree that there was a cause for confusion and the outcome is that CASACIR have been made aware that no work is to be done on site on Cup Day in the future – provided the Shire of Baw Baw declare the Cup Day Holiday to be on Melbourne Cup Day – which they may do. This incident should not occurr [sic] again. On another note, I take the opportunity to remind you that at no time should you be present on the CASACIR site or approach workers or equipment on the site without the express permission of CASACIR”. This was in spite of the fact that: (i) man X, man Y and CASACIR’s “6.2 Quarry Industry Victoria Award”[117] attachment to a second fax sent to Anne on 4 November 2009 notes (under paragraph 36.1.1) that Melbourne Cup was a “paid public holiday”; (ii) most of the shops and all of the industries in the area were closed, so the other shop and business owners knew it was holiday in that area; (iii) man X, man Y and CASACIR’s regular workers were all off for the day, so the workers knew it was a public holiday in the area and they could not have taken the day off and be paid for it unless man X (the quarry general manager) knew and authorised it; (iv) man X, man Y and CASACIR had deliberately brought in workers from their Granite Rock quarry at Bairnsdale to work at the site because the regular workers were taking the pubic holiday off; (v) this was done as a test to see if anyone, and especially me, complained that they were working on a public holiday in breach of their permit; and (vi) as far as me entering the property: *there is a sign at the front of the property giving the name of the manager in case of issues, and man X, man Y and CASACIR’s documentation states that protocol demands that anyone entering the site was to go to the office, which I did; *the only previous times I had entered the site was again following proper protocol: to ask them if they had a works on waterway permit for the illegal works they had done on Kookaburra Creek, and also to hand over a copy of an amended Minutes of meeting. It is important to note that Anne took on the role of man X, man Y, and CASACIR’s agent in telling me what I should and shouldn’t do on man X, man Y and CASACIR’s behalf (I have no idea what her reference to approaching equipment relates to as I have never done that). It is also important to note that none of man X, man Y, CASACIR or their lawyers, had ever told me to get off or stay off the Neerim North quarry site[118]. Anne was clearly their representative and she then went even further by herself effectively defaming me on man X, man Y, and CASACIR’s behalf to EPA by claiming that there was no truth in my allegations so that EPA would not do inspections. She claimed in that email that: [emphasis mine]: “We are aware of this particular complaint which we also received today. Our approach to complaints from [her] is to record them for future reference when preparing a site audit. We no longer respond specifically to any one complaint regarding noise, dust or water quality. We invariably have not been able to verify [her] claims regarding these issues and maintain our normal regulatory audits based on the risk profile of the site. This means that we audit the site around 2 [to] 3 times per year for compliance with work plan an other requirements[119]” – she stated this in spite of (a) a number of DPI audits, field notes and emails detailing a number of the same many breaches of which I had complained, (b) having had to issue a 110 Notice in relation to dust, (c) her email to me of 2 December 2009 (in reply to a complaint from me), stating [emphasis mine]: “The excavator tipping rocks into the hopper could be easily distinguished and possibly should be monitored by EPA. The loading of road trucks … was of a similar intensity”, (d) her email to me of 15 April 2010 (in reply to a complaint form me – a true copy of that email is document 23), stating [emphasis mine]: “I subsequently visited the site on Thursday 25/03/10 and made observations regarding discernible and audible noise at various points around the WA boundary, with particular attention to the surrounding residences. … quarry noise was considerable and could have been at/over the noise limit at the driveway entrances at the end of Pearce Rd”, and (e) her email to Peter on 12 August 2011 (in reply to a complaint form me), stated [emphasis mine]: “[She] did make her concerns known to us. We have since done a scheduled compliance audit on wA1347 and dust is one of the issues that has been noted. We are following up on the dust issue in particular and if not resolved shortly will be issuing a Notice on Casacir to stop work until the situation is rectified. Dust levels observed on the day were unacceptable. … I haven’t communicated our actions to [her] at this time but I intend to do so when we have resolution on the dust issue” – this letter to Peter was sent in spite of having already served man X, man Y and CASACIR with the 110 Notice. And those are just some of the instances where my complaints were proved true, and proved that she blatantly, deliberately and consciously defamed and lied about me and shielded man X, man Y, and CASACIR.
Man X, man Y and CASACIR committed blatant and deliberate fraud, to which council, DPI and WGCMA respectively colluded: *council colluded with man X, man Y and CASACIR by being a party to their fraud: man X, man Y and CASACIR absolutely claimed at VCAT that there would be no detrimental impacts to neighbours, whereas council was fully aware (and Peter had previously and personally identified) that there most certainly would be significant long-term detrimental impacts; and *council, DPI and WGCMA colluded with man X, man Y and CASACIR by being a party to their fraud in relation to man X (with the authority and approval of man Y and CASACIR) having signed a Terms of Settlement Agreement document that they were each fully aware would absolutely not be complied with in the long-term. The Victoria Police describe fraud in the following manner: “Fraud is best described as any deceitful or intentionally dishonest conduct, involving acts or omissions or the making of false statements, orally or in writing, with the objective of obtaining money or other benefit from a person/organisation for him/herself or another, or evading a liability. In simple terms, using deceit to obtain an advantage (property or financial) or to avoid an obligation[120]”.
Council and DPI colluded with man X, man Y and CASACIR to cover for the fact that they knew the sightlines were grossly inaccurate – in some cases deliberately and severely understated (e.g. the house at 370 Neerim North Road was marked and repeatedly described as being 1,000m from the nearest extraction point when it is really only 300m away), and in another instance, the house at 27 Palmer Road (only 320m away) was completely ignored.
The issues in relation to the Neerim North quarry are not the only ones in relation to man X, man Y, and CASACIR and at least some of the regulatory authorities. The collusion extended back to the then Jindivick quarry (a copy of some of the issues relating to the Jindivick quarry is the webpage “Jindivick breaches”.
Summary
These are but some of the many instances where the law has been ignored by those trusted with its enforcement, and where there has been significant collusions. My claims can be easily substantiated, and will be provided should anyone decide to take action against me for what I have written.
Not one of the regulatory authorities’ representatives has ever apologised to me by even saying something like: “I’m sorry, you were right, they did/did not …” Not one of them has ever acknowledged in any open way that they had agreed with man X, man Y, and CASACIR without cause. You can see, instead, that they backed man X, man Y, and CASACIR to the hilt in spite of the acknowledged on-going breaches. In fact, apart from the s110 Notice[121], they did nothing noticeable to enforce compliance. The golden opportunity to back me was in the enforcement hearing, but instead, certainly council and DPI, tried to do what they could to ensure that man X, man Y, and CASACIR were not held accountable for their breaches. The question has to be asked: why they would do that – it certainly makes them look as if there was some benefit to them in that conduct – why would just a pat on the back be reward enough for looking so grossly inept and extremely biased? What is more, I have made these same allegations a number of times before and not one of the regulatory representatives has wanted to talk about it with me. Do they know about my accusations? Absolutely. How do I know they know? Because Adam and Anne respectively testified under affirmation in the Supreme Court that: “I passed [the knowledge of [her] former website] on to Jack Kraan who is the consultant for Casacir and I also passed it on to Peter McWhinney and to Anne Bignell. … Because they were mentioned in the website and I thought it might be of interest to them[122]”, and “I recall pretty much fairly scathing comments concerning all the regulators that had been involved with the approval of the quarry site and subsequent regulation of it and of the owners and the operators … One [comment] in particular that of course was a concern to myself was allegations that [man X, man Y, and CASACIR] were in cahoots, so to speak, with the regulators[123]”. Yet not one of them changed their conduct – they just hated having it revealed.
The 2008 VCAT members said in their judgment that [emphasis mine]: “in determining whether or not to issue a permit we need to be certain that the required performance standards can be met at the boundaries of the siteand if increased activity on the site resulted in these standards being breached then such activity would be prohibited[124]” – the boundaries of the “site” are acknowledged by man X, man Y, and CASACIR and the regulatory authorities alike as being the work authority boundary, yet the regulatory authorities determined that the locations that man X, man Y, and CASACIR should meet the requirements is at the dwellings on land owned and controlled by others[125] – far from prohibiting any activities that breached the standards, the regulatory authorities have bent over backwards to accommodate and excuse them.
The overall risk to the community is that the ignoring of legislation means that no-one can have faith in the upholding of the law, whether by business or by the regulatory authorities – this in turn brings lawlessness. In addition, the collusion by the regulatory authorities between themselves and with man X, man Y and CASACIR, brought fear, anxiety and distrust.
The overall risk to the environment is, amongst other issues, the pollution of air and water, and water stolen from the environment – all caused by the gross non-accountability of business and the regulatory authorities.
IBAC Commissioner, Stephen O’Bryan QC stated: “As with any new and complex legislation, it is not until it is applied in practice over time that areas for improvement are best identified…” In summary, In other words, legislation needs to be applied, not ignored – the law as represented by the planning scheme and other legislation has not been applied on many fronts in this circumstance, and those intended to be protected by the carefully crafted legislation have been severely wronged.
It is my personal belief that (1) that there have been, and probably still are, numerous examples of breaches of public duty and (2) serious action needs to be taken against the relevant authorities for their collusions, and (3) in order to comply with the law, man X, man Y, and CASACIR’s work authority and planning permit need to be cancelled.
[1] Many only revealed under Freedom of Information requests.
[2] I made this accusation in my former website, but no-one objected to the claim, other than by a few side-comments (but none to me personally). For example, Anne Bignell, under affirmation at the Supreme Court in 2013, testified that: (T299:3-7, 11-13): “I recall pretty much fairly scathing comments concerning all the regulators that had been involved with the approval of the quarry site and subsequent regulation of it and of the owners and the operators. One [allegation] in particular that of course was a concern to myself was allegations that [man X, man Y and CASACIR] were in cahoots, so to speak, with the regulators”, but there had not been any communication with me about it, or any denial, even in testimony.
[3] This clause has changed its number overtime, but the words and legal demands remain the same
[4] A simple look at the site from the outside, a fly-over, or a simple Google earth view, shows that there are many requirements and conditions breached and not enforced
[5] Principally the enforcement hearing held in 2010
- s8 “(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” .
[7] See in particular, document 2’s planning permit conditions 26, 27, 28, 29, 30, 41, 54, and 58
[8] Ibid, condition 54’s note
[9] the 2009 judgment, Reason [104]
[10] Ibid, Reason [162]
[11] *2006 work plan: paragraphs 2.5, 4.5, 5.4, 6.7.2, 6.7.3, 7.5. *2007 work plan: paragraphs 2.5, 4.5, 5.4, 6.6.1. *2009 work plan: paragraphs 2.5, 4.5, 5.4, 6.2.4, 6.6.1. *2007 planning report: 3.9.1, 3.12, 4.5, and comment on page 19. *2008 planning report: 3.9.1, 3.9.2, 3.12.1, 4.5, 4.10, and comment on page 23. *Dust management plan in 5 of the bullet points. *Hyder hydrogeological report: paragraphs 3.4, 3.5.1, 4.1, 5.1. *Bellair witness report: paragraphs 2, 8.2, 9.1, 9.1. *Kraan witness report: paragraphs 4.8.1, 4.11.1. Hydrological assessment: paragraphs 4.4, 4.5.1, 5, 6.1
[12] When challenged at a community meeting on 21 October 2009, man X admitted that they had taken water for use in the workers’ toilets, and that a take and use “was not necessary”. Given that this was a business, they had no right to use the provisions of “stock and domestic” when the guidelines are absolutely clear
[13] It was Readymix at the time of closure, rehabilitation and sale of the previous quarry, which became Rinker, and was then Cemex at the time that Trevor was stating that the licence transfer took place
[14] Man X, man Y and CASACIR’s work plan paragraphs 6.6.1 and 2.5
[15] Clause 8, works on waterway permit WG-W-2009-0064, issued respectively under ss.160 & 219 of the Water Act
[16] T228:6-9 (12 April 2013 before Pagone J)
[17] T310:12, T314:11-12, 21-22 (before Pagone J)
[18] 2008 VCAT enforcement hearing
[19] Reasons at [100]-[103]
[20] Paragraphs 8.1 and 8.2.3
[21] From man X, man Y and CASACIR’s first quarterly monitoring report (taking readings from December 2009 to February 2010, while the works and impacts commended on or prior to 4 August 2009)
[22] Also demanded to be produced prior to stage 2, but not so provided and approved prior to the commencement of stage 2.
[23] www.oceanservice.noaa.gov/facts/wetland
[24] www.wetlands-initiative.org/what-is-a-wetland
[25] www.melbournewater.com.au/about-our-water/rivers-and-creeks
[26] Brochure from the Australian Government Department of the Environment, “Wetlands and the community”
[27] Brochure from the Australian Government Department of the Environment, “Wetlands and water quality”
[28] This was in spite of the definition of the Water Act, government plans, and man X, man Y and CASACIR’s own Figures.
[29] The definition of a waterway in the Aboriginal Heritage Regulations is identical to that in the Water Act, with the exception of determining that it must be registered in the Geographic Place Names register.
[30] Peter’s report to council dated 11 June 2008, page 19
[31] Permit condition 54 (i) and (ii)
[32] Work plan dated 12 June 2009, paragraph 2.5.
[33] Paragraphs 2.5 and 5.4 of their work plan dated 12 June 2009
[34] Man X, man Y and CASACIR’s planning report at paragraph 4.11.1
[35] Dr Robert Sadler
[36] T33:23-31 (26 November 2010 before VCAT members Byard and Potts)
[37] A repeated claim in their work plan and planning report, both endorsed as part of their planning permit, with the work plan additionally the basis of their work authority
[38] Admitted in Supreme Court documents to have been approved and authorised by man Y and CASACIR
[39] Work plan dated 12 May 2009, paragraph 6.2.4
[40] I refer to him as “Kraan”
[41] T309:16-22 (15 April 2013 before Pagone J)
[42] T194:29 – T 197:27 (12 April 2013 before Pagone J)
[43] T310:28-30 (15 April 2013 before Pagone J)
[44] T310:7–T313:24 (15 April 2013 before Pagone J)
[45] In reality, polluted quarry wastewater and drainage
[46] The dam they variously called the “fresh water dam” and the “clean water dam” – in spite of it being filthy and polluted by their own quarry
[47] Principally dust noise, water and drainage issues
[48] loose wires, unlocked gates, gates left open, large holes in wire, …
[49] It had decreased by 21% at that time and would have decreased by more by now if we had retained it
[50] i.e. Kookaburra Creek
[51] Man X, man Y, and CASACIR’s work plan, paragraph 6.2.2
[52] It is important to note that they later fraudulently claimed at the Supreme Court that they had never had compliance orders made against them!
[53] The re-instatement of the water claim in accordance with clause 4 of the Terms
[54] Required by the fact that man X and man Y (and CASACIR) had repeatedly and consistently failed to comply with many of the conditions of their permit and/or work authority (including conditions relating to noise, dust, water, pollution, visual amenity, and safety issues).
[55] On a side note, I have very little time for someone who buys next to a working industry and then complains about it – we owned our property for 3 years prior to man X and man Y even looking at the land with the prospect of opening a quarry there. Therefore, I had every right to complain about the way they ignored my rights and just did as they jolly well liked by thumbing their nose to legislation and the law – all with the approval and assistance of the regulatory authorities.
[56] T43:20-17 (24 November 2010)
[57] T88:8–T90:9 (24 November 2010)
[58] The Water Act 1989 (Vic)
[59] The then barrister acting for my related parties and me
[60] Verbally and in writing
[61] T107:19-27, T107:31–T108:3 (24 November 2010)
[62] The sale was forced upon us by man X and man Y conduct outside of the quarry impacts resulting in the need to sell to cover costs, as well ad not wanting to be there because of the quarry impacts – with the sale resulting in an actual $365,000 loss.
[63] The legal action was cancelled due to them having signed and/or authorised the signing of the terms, so that is an absolute lie – there was no case to re-litigate.
[64] From the submissions of man X, man Y, and CASACIR dated 25 March 2019, paragraphs 28-31
[65] Given that man X, man Y, and CASACIR have at every stage tried to blame me (personally) for everything, and the fact that it is mysignature on the application form taking legal action, it was me in the mediation, and also my signature on the Terms, it is an extraordinary claim, but was made to divert from the fact that man X, man Y, and CASACIR signed the document in the full knowledge that they had no intention to comply and was just signed in order to get out of the legal action and to dupe me into believing their lies (which I did at the time).
[66] Witness statement of Neville Goddard of Watson Moss Growcott, dated 14 November 2008
[67] The thin plastic shield only covered a small portion of the drill compared to the proper enclosed SmartRig
[68] Man X’s sworn written testimony and then his sworn verbal testimony, was checked, approved, and authorised, by man Y and CASACIR, as proved in Supreme Court documents presented to the court as absolute truth.
[69] Dr Robert Sadler
[70] T36:2–T38:11 (26 November 2010 before members Potts and Byard)
[71] DPI noted in various field notes and audits that dust was emitting in large amounts that missed the gauges
[72] T238:26-29 (12 April 2013 before Pagone J)
[73] T232:25 (12 April 2013 before Pagone J)
[74] The creek that flowed through our property but starts on the land to be quarried
[75] The then clause 15.05, now clause 13.05-1S
[76] The then clause 15.04, now clause 13.06-1S
[77] The then clause 15.01, now clause 14.02-1S
[78] Peter’s report to council dated 11 June 2008, page 3
[79] Ibid, page 6
[80] Ibid, page 16
[81] Ibid, pages 12-13
[82] Ibid, page 20
[83] Ibid, pages 12-13
[84] Ibid, page 15
[85] Ibid, page 16
[86] Replaced on 1 January 2010 by the Mineral Resource (Sustainable Development) Act
[87] Peter’s report to council dated 11 June 2008, page 16
[88] Peter, and then council, ignored the fact that our application for a dwelling predated man X, man Y and CASACIR’s application for a quarry, but the quarry was given precedence at every step and stage.
[89] Page 15-16 of his report to council dated 11 June 2008
[90] Her email to me dated 17 March 2008
[91] The requirement is for the regular emptying of the interceptor trap. I find it unlikely that it is regularly performed, if at all – I base this supposition on the fact that the overflow is at the bottom and not the top of the bunding around the tank, and the fact that, in spite of knowing that it was a legal requirement, for all refuelling to be done on a concrete pad, the concrete pad and triple interceptor trap were built after the quarry had been open for over a year, and was only built so that they could say it was built when going to VCAT for the enforcement hearing.
[92] T300:11-14 and T301:1-11 (15 April 2013 before Pagone J)
[93] T301: :20-30 (15 April 2013 before Pagone J)
[94] Anne Bignell & Associates
[95] At a date and time of their own choosing
[96] T302:23-27 (15 April 2013 before Pagone J) – this one time was when I discovered Anne, with Jaclyn and Karen from EPA (who had a monitoring unit) at the site (after they had informed the quarry workers of their presence), but they still did not monitor the noise according to the demands of legislation – they turned it on when the noise was lower, left it on for just a couple of minutes and turned it off again. Legislation demands that the noise be monitored for periods of half an hour so as to average out the decibels.
[97] The house was actually well past the lock-up stage by that stag, not just “commenced” as claimed by Anne
[98] Peter’s report to council dated 11 June 2008, page 13
[99] Ibid, pages 15 and 21
[100] Ibid, page 10
[101] Ibid, page 21
[102] Ibid, page 20
[103] Inter alia: it ignored complaints, it ignored the illegal works performed by man X, man Y and CASACIR, it ignored breaches of the planning permit it issued to man X, man Y and CASACIR, it declined to tell the truth at VCAT, it declined to tell the truth under oath at court – in short, it sold us out to aide man X, man Y and CASACIR
[104] Permit conditions 31 and 34
[105] Traffic Engineering Evidence Statement Prepared by Norman Russell Symons, section 1
[106] Ibid, section 2.3
[107] Ibid, section 4.2
[108] Ibid, section 4.3
[109] Ibid, section 5
[110] Peter’s report to council dated 11 June 2008, pages 17 and 20
[111] Peter’s report to council dated 11 June 2008, page 16
[112] The then clause 14.01-1
[113] Now clause 14.01-1S
[114] A registered property valuer valued the property at $840,000 in early 2010 (and prices rose after that), but was sold for only $475,000 because of the quarry impacts
[115] Putting aside for the moment the fact that they regularly went over the limit, regardless
[116] T41:16-17 (26 November 2010 before VCAT members Byard and Potts)
[117] Marked as bing “current as at 1-1-2002” (i.e. 7 years previous to the occurrence)
[118] They told me to stay off their Jindivick quarry site, but I hadn’t been on that site and would love to know who had been on the site pretending to be me!
[119] Anne’s email to EPA of 19 June 2012
[120] “The Way Ahead – Crime prevention & community safety”
[121] Which Notice was only issued because I had revealed the extraordinary amount of dust exiting the site in my former website.
[122] T299:3-13 (15 April 2013 before Pagone J)
[123] T308:12-16 (15 April 2013 before Pagone J)
[124] Reason [71]