Kookaburra Creek

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

The Guidelines for Geographical Place Names state that the purpose of the Geographical Place Names Act is to make provision for the naming of places and the registration of place names, and to make the process more streamlined. It was our desire that our waterway should be recognised, and be notified to the Registrar of Geographical Names, and placed in the Register of Geographic Names  with its ‘Official Place Name’ status.

This watercourse commenced at a spring on the land now operated as a quarry, some 250m or so to the north of our property boundary. It flows through man X, man Y and CASACIR’s land for that distance and then entered our property for the distance of about 850m, exits our property then joins McKerlie Creek some 50m away before joining the Latrobe River.

On 12 October 2006 (prior to man X, man Y and CASACIR even applying to DPI or council for a work authority or a planning permit), we applied to council to be allowed to name the above watercourse which, as seen, flows for the majority of its length through our property, through a natural riparian gully which contains lyrebirds, kookaburras, wombats, wallabies and other native birds and animals.

The purpose for us desiring to have it named is as follows: (1) it would have allowed us to name the tracks on our property accurately (we have a track that runs close to the waterway and we wanted to name it “Lyrebird Creek Track” for identification purposes – all our tracks have names and we wanted to this put through so we could put up correct signage), (2) authorities such as the Department of Sustainability & Environment (DSE) encourage the naming of waterways for reasons such as the unambiguous identification of geographical waterway and surrounds in relation to: * property rights, * national security and public safety, * natural disaster, emergency response, search and rescue operations, * other dispatch services, * infrastructure, * public administration, and * map and atlas production, (3) to assist Southern Rural Water (SRW) and West Gippsland Catchment Management Authority (WGCMA) to have the waterway clearly identified and named rather than listed as “un-named” in their registers, (4) to provide assistance in identification for monitoring activities of the waterway by Water Authorities, WaterWatch and the like, including providing an identification point for monitoring of water quality and quantity, and (5) to assist with land use conditions and land management associated with the waterway.

In December 2006 I approached council to see how the application was progressing and was told that Finlayson was handling it. Due to pressures of fighting Council over our dwelling application and the quarry application, I left it in Peter Finlayson’s hands. In July of 2007, having not heard anything, I contacted Finlayson (I will refer to him by his last name to save confusion with Peter McWhinney) to see where the application was up to, and, to my horror, he said that, because he hadn’t heard anything from me he had deleted the information from the system – without any such advice, comment, communication or discussion with me – the only reason we knew that the application had been deleted was because when I asked how it was progressing!

As a result of that conversation with Finlayson I then re-sent the application and he submitted a map (with the watercourse shown commencing at the road instead of at the spring (and he steadfastly refused to change it). We challenged his drawing of the commencement of the watercourse position, pointing out that it was not only so obvious that a watercourse doesn’t just start at the edge of a road, but also that the official VicMap 8122-3-3 agrees with the facts that the watercourse starts at the spring, not at some roadside drain. Verbally he agreed but said that it was up to the cartographers to identify the commencement not him – but, if his drawing had no hidden agenda, why wouldn’t he change it to what he accepted is correct, especially since the government cartographers had already identified in the commencement of the waterway in the VicMap.

I received an email from Finlayson stating that he had spoken with the other parties, being Forest Edge (to the south) and man X and man Y (owners of the land they and CASACIR later quarried), and that none had any problems or issues with the naming. This email was two days after my email to man X and man Y notifying them of the mistake in the map and correcting the commencement of the watercourse to being at its real locations, being the spring (as identified and admitted in their own documents).

We received a copy of the Recommendation to council that the waterway beapprovedfor naming. However, the councillors (many of whom had stated before even seeing the quarry application that they would support the quarry), voted to hold over their decision on naming the watercourse.

However, when it went back to council for determination, councillors decided that it was too insignificant and failed the criteria to be a waterway. When questioned on council’s criteria, the then Mayor clearly stated that council had no criteria and would not set any criteria, yet our waterway was considered by councillors to be too insignificant – against no criteria!!!! This refusal was in spite of the fact that there was no minimum criteria at council, no minimum criteria in the Geographical Place Names Act, SRW had no minimum criteria, WGCMA had no minimum criteria, and the Water Act 1989is clear that there is no minimum flow (“ ‘waterway’ means- …a river, creek, stream or watercourse; or a natural channel in which water regularly flows, whether or not the flow is continuous”).

I repeatedly asked under what terms it is considered by councillors to be “too insignificant” and they repeatedly refused to answer. I sought their criteria for permission to name and they repeatedly refused to provide any information. I asked generic questions about the criteria for naming non-specific waterways in general, but they also refused to answer these questions. Baw Baw council, and Finlayson in particular, had, at no stage, sent the application back to us for more information or justification or anything – they just made an arbitrary decision and said that is the way it is and that they are not willing to discuss it, let alone change their minds (I have plenty of correspondence from me to them any very few replies, and I also have much more information). Council did not undertake appropriate processes to fulfill their naming responsibilities. I don’t even know why it had to go to councillors since Finlayson followed the Guidelines in having checked to ensure conformity with the principles, communicated the proposal to all stakeholders and conducted the consultation with them, providing reasonable period for comment and/or objections, he finalised his recommendation – but instead of finalising his proposal documentation and forwarding it to the Registrar with background information, he sent it to councillors.

I contacted the Registrar of Geographical Names who advised us that our original request for the name “Lyrebird Creek” was not an option as a name because of another of that name being 50km away and they did not want confusion. Since the area abounds with Kookaburras we decided on “Kookaburra Creek” and that met with the approval of Geographic Names.

The Registrar of Geographical Names then instructed council to revisit the application with the name of Kookaburra Creek and the councillors reluctantly did, but with the same results. The Registrar of Geographical Names again told council to revisit it and this time they did, but contacted the adjacent landowners again and man X, man Y and CASACIR (to the north), had by this time had their application for a quarry in at Council objected, giving councillors the “out” they wanted. They also used the fact that there were other un-named watercourses in the area as an excuse and they refused it again  on the same basis that it was too insignificant – against no criteria!

It is my contention that the only reason they did not want to name the watercourse was because they became aware that if the watercourse was named, it could then involve man X, man Y and CASACIR having to develop an Aboriginal Heritage Management Plan. (It is to be noted that they should have been made to develop such a plan regardless).

It is my contention that the only reason they did not want to name the watercourse was because they became aware that if the watercourse was named, it could then involve man X, man Y and CASACIR having to develop a cultural heritage management plan. (It is to be noted that they should have been made to develop such a plan regardless given that the Aboriginal Heritage Regulations state:  “26 Waterways (1)  Subject to subregulation (2), a waterway or land within 200 metres of a waterway is an area of cultural heritage sensitivity. (2)  If part of a waterway or part of the land within 200 metres of a waterway has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity. Example 1: An activity area consists of the whole of a lot.A waterway passes through the lot. All of the land within 200 metres of one side of the waterway has been subject to significant ground disturbance. The land within 200 metres of the other side of the waterway has not been subject to significant ground disturbance and is an area of cultural heritage sensitivity” – and they were not only excavating within 200m, they were excavating through and destroying the waterway, the spring, the catchment area, and the aquifers with supplied the water to it!

Glenn Patterson, the then CEO of council stated that the questions relating to the criteria for watercourses to be named would not be heard at council meeting. Finlayson was supposed to be answering them but his answers were inaccurate, evasive and non-informative. I challenged them and he did not respond.

Phil Drummond, the then Director of Corporate Development (and sometime acting CEO) at council refused to look into it or discuss it further.

It obviously met council’s “satisfaction” criteria to refuse to name a simple watercourse and to ignore the clear and repeated instructions of the Registrar of Geographical Names. But the real reason is probably because they knew that when they approved the quarry application, they would be approving the destruction of the spring and headwaters of Kookaburra Creek, as well as its upper catchment and the aquifers which feed the spring – all of which clearly met council’s “satisfaction“.

Further, as part of the subsequent planning and permit processes, after man X, man Y, and CASACIR prepared and then submitted their work plan, and then submitted their application for a planning permit, council and the other authorities quite rightly needed 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 (particularly us), and a further level of apparent collusion became obvious to me – for example in the collective classification of the recognised waterway as a “drainage line”[1] so as to try to minimise the perceived impacts, and imply that there was no valid use for the waterway. In fact, Anne Bignell then of the then DPI said in two emails to me dated 14 July 2010, that 

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 1998It 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 was stated in spite of the Water Act having the clear description: “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 (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[2] is extraordinary given that (1) while there is a definition of a “waterway”, there is 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 – and this was so as to assist man X, man Y and CASACIR avoiding 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 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. 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 instructed council to name it.


[1]    This was in spite of the definition of the Water Act, government plans, and man X, man Y and CASACIR’s own Figures.

[2]    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.