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.
Peter McWhiney was (and probably still is) the manager of statutory planning at Baw Baw Shire council. Peter assisted in, and was an important part of, many of the forms of obstruction of justice as well as the gross injustice of what happened, some of which will be revealed below – this is just a bare overview of some of the things Peter did and did not do. Believe me, there are many things that are not listed here.
Peter was the person in charge of the approval or otherwise of the Neerim North quarry application – as he attested to under oath at the Supreme Court in 2013, where he came and testified on their behalf:
Ms Kaye: What is your occupation?
Peter: I’m a town planner.
Ms Kaye: Whereabouts do you work?
Peter: Baw Baw Shire Council.
Ms Kaye: In fact, is your position there manager of statutory planning?
Peter: I’m the manager of statutory planning, yes[1].
Peter had known and had dealings with both man X and man Y for many years, as he attested to under oath at the Supreme Court in 2013, where he came and testified on their behalf:
Ms Kaye: You know both [man X] and [man Y], is that correct?
Peter: I do.
Ms Kaye: The nature of your association with each of those gentleman is professional, is that right?
Peter: That’s correct, they have both been applicants in relation to matters I’ve dealt with.
Ms Kaye: That’s in your capacity as manager of statutory planning at the Baw Baw Shire Council?
Peter was the person charged with ensuring that legislation was upheld. He was the person with the legal responsibility to not look the other way when there were breaches. Peter failed to act in good faith, he failed to uphold legislation, he noted that the environment and existing neighbours had legislated rights that had to be upheld under law, and then he deliberately made the decision to recommend the very industry which he stated that he knew would erode neighbours pre-existing legal rights and cause them severe impacts for a very long time – this was followed by him knowingly failing to enforce safeguards which would protect some of those pre-existing legal rights, all in favour of his friends: man X, man Y and CASACIR.
Ms Kaye: You’ve obviously been involved with the Neerim North quarry that’s run by Casacir over a period of some years, is that correct?
Peter: That’s correct.
Ms Kaye: Do you have any concerns about the operation of that quarry?
Peter: I’m concerned to see that it operates in a proper manner but if issues – there had been a few issues along the way but they have generally been of a minor nature and that’s probably about it. I’ve always found them reasonably good to deal with it.
Ms Kaye: When you say them, who are you talking about?
Peter: The company, the permit holder [man X, man Y and CASACIR][3].
If man X, man Y or CASACIR made decisions that were against the best interests of others or broke the law, from what happened (or didn’t happen, as the case may be) it was apparently deemed to be of absolutely no consequence by Peter – certainly nothing that he deemed required enforcement[4]. Following are just a few of the examples of where and how Peter made the decision to allow man X, man Y and CASACIR to run the show instead of making them comply [emphasis mine]:
Me: We have talked about the enforcement hearing, you didn’t want to be a party to it. Can you tell me why?
Peter: No, you would have to explain your question to me, what do you mean about the enforcement hearing and not wanting to be a party to it?
Me: The enforcement hearing in 2010.
Peter: Your application?
Me: Yes, my company’s application.
Peter: The council doesn’t have a choice, it has to be part of it. I wouldn’t have made a decision as to whether or not I wanted to be part of it, I would have had to have been a part of it.
Me: You didn’t want to be a specific party?
Peter: No, we didn’t want to specifically take action against Casacir through it, no.
Me: Did you go out to the site before the hearing?
Peter: I can’t recall. I’ve been out to the site a number of times. I can’t recall exactly when I’ve been out and when I haven’t been out.
Me: At the hearing were you asked to provide a list of what you considered to be breaches or not breaches?
Peter: Having to try and recall, I seem to remember something along that sort of nature but list, I can’t remember if there was paper list or just asked what was outstanding.
Me: Can you remember what you said was outstanding, if you said anything?
Peter: I remember there were some minor matters, the landscaping wasn’t exactly in accordance with the planning permit. I’m not sure if I said at the time but the septic tank hadn’t been installed, they were still using a holding tank. I’m not sure if there had been anything else. …
Me: Are you aware that you were basically called a liar at VCAT because you said that there was – the regimented planting still hadn’t been done, hadn’t been remedied, but under testimony it was given that it had been remedied?
Peter: No, basically the situation on the planting was that we had spoken to Casacir about it and reached an understanding that if there were any losses in terms of the planting that they were to be replaced and that I would come out at some stage in the future and see how it appeared through natural attrition of planting, whether it was still too regimented, I would be able to require certain plants to be removed to get the overall, more natural effect.
Me: You are not aware of any testimony saying that it had already been done?
Peter: The planting’s been done.
Me: No, the un-regimenting, you are not aware of any?
Ms Kaye: Mr McWhinney, you were asked about unregimented planting, is the making of planting in unregimented rows something that occurs all at one time or is that a gradual process over time?
Peter: The ideal would be that it’s planted out in a non-regimented fashion, that’s what the condition says, and it was done in a regimented fashion and what I suggested was a means of getting around that in the sense of making it unregimented from what had already been planted, basically.
Ms Kaye: Your suggestion was – – -?
Peter: My suggestion was to let the attritions, the plants that died not be replaced and see what the effect of that was over time, whether that broke up the visual effect.
Ms Kaye: The breaking up of the regiments was something to be done over time rather than straight away or all at once?
Peter: Yes, it was a way of achieving the objective after what had occurred[6].
Here we have, for example, a situation where the conditions were very clear that [emphasis mine]:
Landscaping must be in native species predominantly of those local to the area and not laid out in regimented lines and must be maintained to the satisfaction of the responsible authority. The vegetation must be replaced if death or dieback occurs.
Yet, regardless that man X, man Y and CASACIR had deliberately had plants planted in regimented rows in a number of locations, they were not taken to task, were not made to remedy the situation, but were actively encouraged to allow some of the plants to die (in further breach of the conditions). Mustn’t upset man X, man Y or CASACIR by actually making them comply, must we?
Me: About a year ago, possibly, there was an issue of drainage leaving the site, do you recall that?
Peter: If it’s the one you were referring to where you were concerned about sediment laden run off leaving the site, yes.
Me: That is correct. Do you recall being informed by [man X and/or man Y] that there was a rock spall lined drain across the quarry entrance?
Peter: No.
Me: Have you ever seen a rock spall drain across the quarry entrance?
Peter: I can’t say I’ve paid attention to look for one but I don’t recall seeing one, no[7].
Clearly, in spite of me providing photos and complaining, he did nothing and ignored the lies told by Kraan on behalf of man X, man Y and CASACIR.
I asked him under oath:
Me: There were two affidavits produced by [man X] on behalf of he and [man Y] and Casacir for that hearing. Did you ever see those?
Peter: I can’t recall seeing them, no.
Me: You can’t?
Peter: No.
Me: So your advice wasn’t asked for regarding them?
Peter: I can’t recall.
Me: Was there any discussion with you about what he would be testifying about?
Peter: I can’t recall, I doubt it very much[8].
By so swearing, Peter confirmed that man X, man Y, CASACIR, Smith, Kaye and Southall had all actively and knowingly lied to and deceived the Supreme Court when they blatantly lied and told the court no less than 9 times, that:
The information which formed the basis of [man X[9]]’s evidence at the VCAT proceedings (in both written and verbal form) had been checked carefully with the relevant local … government authorities[10].
Peter’s comments about and knowledge of man X, man Y and CASACIR’s poor documentation
Even prior to the quarry commencing or even obtaining its permit, Peter had shown the lengths he would go to in order to assist man X, man Y and CASACIR to get their permit. He knowingly and repeatedly failed to act in good faith, and acted in blatant and full support of the quarry application in clear and admitted knowledge that the information provided by man X, man Y and CASACIR was grossly inadequate, at best:
There are disparities in [the]information provided.[11]
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.[12]
The use of modelling is flawed and the results would be expected not to be exactly reflected by reality …[13]
The plethora of errors and inconsistencies in the various reports forming the application pointed to by the objectors seems overwhelming[14].
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.
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.
In addition to the above, in an email from him to me over a year before the application went to council for a decision, Peter had already acknowledged that man X, man Y and CASACIR at times ignored Peter’s requests for more information, and that the responses they did provide sometimes raised more questions than they answered:
Some of my requests have not been responded to and some of the information raises further issues.[15]
– but all that apparently met Peter’s criteria for ”satisfaction”. Peter acted in the role of decision maker for and about the Neerim North quarry, but he certainly failed to act as any sort of supervisor or oversight, contrary to the legal requirements of his role.
Peter and his blatant disregard for the planning scheme’s requirements
Peter’s preference for man X, man Y and CASACIR over neighbours and other aspects of the planning scheme are on the extreme side of incompetency, at best. He admitted that the planning scheme required the protections of (and improvements to) existing air quality, noise environment and surface and ground water quality and flow [emphasis mine]:
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:
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- 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 protectthe health of ecological systems and the biodiversity they support (including ecosystems, habitats, species and genetic diversity).
- Protect areas and sites with significant historic, architectural, aesthetic, scientific and cultural values.
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Planning is to assist in the conservation and wise use of natural resources includingenergy, water, land, flora, fauna and minerals to support bothenvironmental quality and sustainable development over the long term through judicious decisions on the location, pattern and timing of development.
Planning is to contribute to the economic well-being of communities…[16].
Having made the observation and identification of the quietness of the area (see below) he acknowledged that the quarry would destroy that very quietness and he then made the extraordinary comments that (1) effectively said that it didn’t matter, (2) it was more important to have the rock able to be removed and (3) neighbours were not entitled to have as high a quality in a farming zone as in a residential zone (where there are cars running a lot of the time, lawnmowers going, music loud in cars and on radios, and so on) [emphasis mine]:
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[17].
The quarry will clearly result in land use conflicts. Should residential amenity supersede extractive industry in a Farming Zone?The significance of protecting and utilising stone resources spelt out in the planning scheme would indicate not. Stone resources are finite and fixed locationally and should take precedence…[18]
Part of the attraction of the area and cited as such by objectors is the quietness. This would be perceived as meaningthe quarry’s operations would be that much more audible and noticeable. … Whilst the area is not in a residential zone it is still important to protect the amenity of residentsand the scheme requires this. However, the relative significance of this requirement and the degree of residential amenity that can be expected is not as high as could be reasonably expected in a residential zone. … The state planning provisions clearly recognise the importance of the resource to economic growth and focus upon developing the resource or its protection for the future. The resource is needed for the development growth that is occurring in the region and will in all likelihood continue to occur[19].
Whilst a prosperous economy is encouraged by the scheme, the scheme also requires the protection of the environment, amenity, landscape values and health and well-being. Extractive industry has the potential to dramatically impact upon these. 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[20].
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[21].
So Peter did what he could to minimise, belittle and ignore complaints so that he did not have to take action against the quarry – the shame of that is that Peter, having acknowledged the role of the planning scheme in protecting others, and the significant impacts that would occur if the quarry were to proceed, then made the clear and unequivocal decision to support man X, man Y and CASACIR and their application to extract the rock as paramount. He made the pre-existing rights of others an absolute non-issue – this is proved by his continued deliberate allowing of the unreasonable impact upon our amenity because man X, man Y and CASACIR all failed to comply after Peter allowed the quarry to commence and continue. Peter’s decision to ignore neighbours’ rights in favour of man X, man Y and CASACIR may, of course, also have had something to do with the conflicts of interest between council and CASACIR, man X, and man Y and/or man Y’s other companies[22](as detailed on a separate page).
Peter’s blatant and deliberate disregard for the planning scheme’s requirements on buffers
Peter acknowledged the demands of the planning scheme in relation to buffers [emphasis mine]:
Provision for buffer areas between new extractive industries and sensitive land uses should be determined on the following principles:
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- Clearly defined buffer areasappropriate 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[23]or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry[24].
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The failure and blatant and deliberate disregard by Peter to insist that the provision of the planning scheme being upheld is particularly evident in relation to buffers: i.e. that he did not insist on any “clearly defined buffers” at all, and he certainly did not insist on man X, man Y or CASACIR “owning or controlling” all of the buffer – when he knew that much of the buffers was on land owned and/or controlled by others.
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, …).
Anne Bignell of DPI had even admitted 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. …”. By not requiring that the buffer be defined, Peter made the decision to ensure that the “waters could be muddied” and that man X, man Y and CASACIR could get away with avoiding the legal requirement of “own or control” – because Peter knew that it would not be possible to own or control all the buffers and Peter and council wanted the quarry!
In relation to the buffers, Peter stated [emphasis mine]:
The SEPP[25]provides a recommended buffer distance to a sensitive receptor from hard rock quarrying with blasting of 500 metres[26].
Council will recognise the issue of neighbours ‘providing’ the buffer for some-one else[27]
Council should commence consideration of the application with caution given the buffer reduction sought. Where sufficient doubt exists, Council can employ the precautionary principle and refuse the application. However, in the officer’s opinion, given the analysis …, it is not considered that the circumstances are such that the precautionary principle should be applied. Allowing a quarry to be developed when there are houses to half the recommended buffer distance is a worry …[28]
Recommendation – That Planning Permit Application No. PLA0010/07 to use and develop land for extractive industry at CA 178 (TP283848Q), CA 181 (TP65832Y) and CA182 (TP590111H) Parish of Neerim and Lot 1 TP23437S, Neerim North Road and 63 Palmer Road, Neerim North be approved and a Notice of Decision issued subject to … conditions…[29].
And all the significant detrimental impacts did commence, as Peter knew they would, but this apparently met his “satisfaction” criteria.
Even though Peter acknowledged that the buffers had to be clearly defined and owned or controlled by man X, man Y and CASACIR, it apparently met Peter’s absolute “satisfaction” criteria to allow them to use the rules for existing quarries and not new ones, and to not require the required “clearly defined buffer” or for them to “own or control” the buffer.It also apparently met Peter’s “satisfaction” criteria that the document required to be taken into account in relation to those buffers (AQ2/86) was totally ignored.
Peter’s uncaring attitude to others’ losses in relation to property values
Peter exhibited his lack of care or concern about man X, man Y and CASACIR’s quarry’s impact resulting a significant decrease in others’ property values:
The impact of a development proposal on property valuations is not generally an issue considered in planning law though clearly important to property owners[30].
This was blatantly, and knowingly[31], untrue, with the planning scheme being very explicit about it – SPPF 14.01-1 states [emphasis mine]:
In considering a proposal to … develop agricultural land, the following factors mustbe considered: * …The impacts of the proposed … development on the continuation of primary production on adjacent land, with particular regard to land values…
This meant that either Peter didn’t give a hoot about it, or that he clearly was not conversant with the planning scheme. However, this severe detrimental impact on others clearly met Peter’s “satisfaction” criteria.In fact, Council 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 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. Yet this significant loss of our property value obviously met Peter’s “satisfaction” criteria.
Peter’s uncaring attitude to others’ entitlements to protection of their water rights
Peter acknowledged that [emphasis mine]:
The SPPF also includes other policies relevant to consideration of the application. This is mainly in the environmental area with policies on … water quality protection and protection of catchments, waterways and groundwater[32].
Peter acknowledged that there are issues with regard to water. However, the fact that there are issues that were, and remain, unresolved met Peter’s “satisfaction” criteria – including ignoring Peter and council’s direct responsibilities under the Water Act.
Peter’s further responsibility was to enforce the planning scheme, legislation and conditions in relation to the protection of the neighbour’s pre-existing water rights – which the planning scheme required to be maintained and protected – however, Peter knowingly and repeatedly failed to enforce those pre-existing rights in favour of man X, man Y and CASACIR wherever it was to man X, man Y and CASACIR’s benefit to do so. Further, Peter was fully aware of the fact that man X, man Y and CASACIR had stated their full intention of destroying the spring at the commencement of Kookaburra Creek (together with its upper catchment, upper reaches and the aquifers that feed it, and thereby deliberately and permanently remove the natural flow from our property) – all the time knowing that this was the water upon which our property relied. It was a gross mistake to have allowed this since the planning scheme required the protection of agricultural pursuits and land (as well as watercourses). Peter made a grave mistake by having ignored his responsibilities under the planning scheme and Water Act 1989 in allowing this to happen, and it all apparently met Peter’s “satisfaction” criteria.
It also met Peter’s “satisfaction” criteria that man X, man Y and CASACIR stated their intention to discharge their quarry wastewater and drainage (which they had already commenced) into and through our property via the remains of Kookaburra Creek, without any discussion with us, without our permission or authorisation, and with our repeated stated rejection of such discharge, and in breach of the law.
Condition 1 of man X, man Y and CASACIR’s permit stated: “Before the use/development starts, the approved work plan and work plan conditions approved by the responsible authority which will form part of this permit must include the following amendments to the endorsed work plan and/or the draft work plan conditions submitted with the application: …iv. location of a wetland treatment area…” It apparently met Peter’s “satisfaction” criteria that the proposed so-called “wetland” was merely identified as being an open drain with no proper mechanisms for filtration or for providing the quality of water, or the natural flow of spring water that we previously enjoyed, in breach of both the law and the instructions of the tribunal members. Further, it was in direct contradiction to man X, man Y and CASACIR’s fraudulent claim of the site being a “closed system” that retained and re-used the drainage and wastewater, and was therefore in breach of the work plan and planning report which makes it in breach of the permit. Additionally, although this mis-named “wetland” was required to be installed well prior to the commencement of stage 2, stage 2 commenced without it – in fact, the so-called “wetland” (undertaken at the tribunal to be installed, and which was part of the work plan and permit) was going to be replaced by a much shorter, steeper, open drain with even less of any mechanisms for protecting what remained of the flow of Kookaburra Creek – and we were told that we would have no right to consultation when (and if) a licence or permit was ever applied for[33].
From the very first application (January 2007) Peter was fully aware that, if council granted a permit, there were works that would be required on Kookaburra Creek during the construction part of stage 1, and that those works would require a Works on Waterway permit under the Water Act 1989 prior to any such works commencing, but he did not insist on any such permit being obtained.
In addition, Peter knew that there were requirements for other permits, licences, authorisations and permissions relating to interference with Kookaburra Creek and the north-east spring. However, even though Peter had responsibilities under the Water Act 1989, it met Peter’s “satisfaction” criteria that most of these licences or permits were not applied for at all let alone prior to the illegal and unauthorised works on Kookaburra Creek, and he apparently did not require the provision of the necessary plans and specifications demanded by the permit.Further, it also met Peter “satisfaction” criteria that man X, man Y and CASACIR has disregarded the requirements of the planning scheme [emphasis mine]
14.01-1 To assist the protection and, where, possible, restoration of catchments, waterways, water bodies, groundwater … Protect water catchments … Consider the impacts of catchment management on downstream water quality and freshwater… environments. Retain natural drainage corridors with vegetated buffer zones at least 30m wide along each side of a waterway to maintain the natural drainage function, stream habitat and wildlife corridors and landscape values, to minimise erosion of stream banks and verges and to reduce polluted surface runoff from adjacent land uses … Ensure that works at or near waterways provide for the protection and enhancement of the environmental qualities of waterways and their instream uses… Ensure land use and development proposals minimise nutrient contributions to waterways and water bodies and the potential for the development of algal blooms. Require the use of appropriate measures to restrict sediment discharges from construction sites.
14.02-2 To protect water quality… Protect … from potential contamination. Ensure that land use activities potentially discharging contaminated runoff or wastes to waterways are sited and managed to minimise such discharges and to protect the quality of surface water and groundwater resources, rivers, streams, wetlands… environments. Discourage incompatible land use activities in areas … where the land cannot be sustainably managed to ensure minimum impact on downstream water quality or flow volumes…Prevent the establishment of incompatible land uses in aquifer recharge … areas and in potable water catchments”.
However, the fact that man X, man Y and CASACIR not only failed and disregarded all the “protections” (let alone the “enhancements” or “improvements”), and the fact that instead of protection there would be destruction and pollution, all met Peter’s “satisfaction” criteria.
Peter’s uncaring attitude and disregard for others’ rights regarding noise and general amenity
Peter even acknowledged that [emphasis mine]:
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…. [34]
Peter’s responsibility was to enforce the planning scheme, legislation and conditions in relation to the protection of the neighbour’s pre-existing amenity and water protection rights – which the planning scheme required to be maintained, protected and, where possible, to be enhanced – however, Peter knowingly and repeatedly failed to enforce those pre-existing rights, in favour of the quarry wherever it was to man X, man Y and CASACIR’s benefit to do so. Peter exhibited no care and even refused to come out to the site when I requested that he do so (and a time and date of his choosing). In fact, when he was supposed to be performing a “secret” site visit, he made sure that man X and CASACIR knew he was coming.
Peter’s uncaring attitude and disregard for others’ rights regarding air quality
Peter even acknowledged that:
The SPPF also includes other policies relevant to consideration of the application. This is mainly in the environmental area with policies … to protect … air quality ….
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- Planning is to contribute to the protectionof air… In particular, planning should:
- Adopt a best practice environmental management and risk management approach which aims to avoid or minimise environmental degradationand hazards.
- Preventenvironmental problems created by siting incompatible land uses close together.[35]
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But then Peter went on to approve and recommend the quarry application which he knew would (amongst the many other detrimental impacts) severely reduce the air quality on our property, and therefore, because of Peter’s decision, the detrimental impacts to our air quality from the quarry’s frequent and significant unlawful emissions was significant but this apparently met Peter’s “satisfaction” criteria.In fact, Peter evidenced no concern and would not even inform me of anything he intended to do about it – which was nothing.
Peter’s uncaring attitude and disregard for others’ rights in relation to productive agricultural land
We had a right to income and a productive property. Peter even acknowledged that [emphasis mine]:
The land is in the Farming Zone. The specific zone purposes are:
o To provide for the use of land for agriculture.
o To encourage the retention of productive agricultural land.
o To ensure that non-agricultural uses… do not adversely affect the use of land for agriculture…[36].
But then Peter went on to approve and recommend the quarry application which he knew would (amongst the many other detrimental impacts) severely reduce (if not destroy) the productivity of our property (and potentially that of others), and therefore, because of Peter’s decision, the detrimental impact to our agricultural enterprise were both long term and significant but this met Peter’s “satisfaction” criteria.
A higher standard of living
Peter acknowledged that the planning scheme demanded that there was a need to ensure an increase in the quality of life of residents, not the decrease Peter allowed [emphasis mine]:
The scheme recognises the need to co-ordinate … the need to protect the environment and achieve sustainability through management practices and an increase in the quality of life of residents[37]
Peter was fully aware that Kraan claimed on man X, man Y and CASACIR’s behalf, and with their full knowledge and approval that “There will be a … benefits such as a higher standard of living for local residents …”. However, Peter also knew that what Kraan claimed was false because he, himself, had acknowledged the duration and severity of the detrimental impacts, as seen previously. The question is: what is the triple bottom line i.e. where are the financial, environmental and social values to the neighbouring landholders? The value is to council (which makes it no surprise that Peter supported man X, man Y and CASACIR’s quarry to the detriment of its neighbours) and to the benefit to man X, man Y and CASACIR, who have evidenced exceeding little care about the community. Yet all this met Peter’s “satisfaction” criteria.
Peter’s clear, significant and deliberate failure to enforce the planning scheme caused severe detriment to others, especially us. Peter’s attitude can easily be summed up using his own words (from a letter to an unknown correspondent – obtained under FoI), where he acknowledged that:
[Council, and I, Peter,] are not going to pursue [man X, man Y and/or CASACIR] to ascertain where they are with all the requirements.
Sadly, that does say it all – he had no care or concern as to compliance by an X, man Y and/or CASACIR. Again, it is alarming that it obviously met Peter’s “satisfaction” criteria.
Peter frequently failed to go to the site to see for himself
Peter ignored the breaches and repeatedly and consistently refused to meet me on site at a time and date that suited him. Instead, if I complained, he would ring Kraan, man, X, or CASACIR to ascertain what was happening at the site rather than go out and see for himself. One such instance is as follows in an email from Peter to me [emphasis mine]:
In relation to your concern about dust last month the advice was that it was still very damp and little potential to generate dust in those conditions. The only thing they could think of that might generate some dust at such times would be the crusher but they do not believe it likely that small quantities of dust from such would leave the property given the plant location etc and again point to the dust monitoring as evidence of compliance with the standards. I hope this assists.
Firstly, basalt is not porous and therefore it was immaterial if the outside of the rock was damp, the inside was dry and when crushed, dusty. Secondly, the monitoring locations were very limited and dust was frequently emitted to locations that missed the monitoring sites. Thirdly, Peter allowed the quarry to use double he amounts of dust as were legally allowed. Fourthly, what would have assisted would have been for Peter to do a proper surprise visit to the site (without wearing his blinders of prejudice against me and being pro-the quarry) and see the real facts for himself. Asking them if there was dust – how extraordinary, as if they would admit it – talk about putting the fox in charge of the hen house!! He must have assumed I was very stupid if he thought I would believe that his ignoring it, his incompetence, and him producing such rubbish, as well as the quarry representative’s ongoing deceptions, would assist in having the dust dealt with!! In addition, the circumstances that produced the offending dust were the same as when man X, man Y and CASACIR eventually had a 110 notice served on them earlier in August 2011 – for failure to comply with the self-same dust regulations. The difference this time was that (1) man X, man Y and CASACIR were cocky and believed that Peter would again do nothing (which assumption again proved absolutely true), and (2) the fact that man X, man Y and CASACIR had taken out action against me in the Supreme Court (knowing that they were not going to proceed with the majority of the claims – claims that were made when they knew that they were never going to proceed with them, and their creation was for 3 purposes: (a) to bully, intimidate and coerce me in to removing my former website from the internet (which they succeeded in doing, and then they removed the majority of the claims – proving my contention of fraud, abuse of process and obstruction of justice), (b) to put such pressure on me that I would move away and that would stop me from stopping the quarry (which they knew I had the ability to do unless they stopped me) and (c) to intentionally cause me emotional and financial distress, damage and personal injury – which they certainly did by deliberately and determinedly driving me into bankruptcy).
In fact, Bob Duncan of DPI wrote to Peter on 5 September 2011[38], listing 8 permit conditions that remained in breach. It is a shame that Peter apparently either did not know how to assess the permit for compliance, or he had been unwilling to do a proper reality check for himself – either way, he shoed himself to be grossly incompetent.
Peter refused to make admissions at the tribunal and thereby revealed his bias
Having done yet another FoI (in April/May 2011), I discovered a file note, written by Peter on 10 February 2011 (3 days after the order for “no enforcement orders” were handed down from VCAT). This note states:
FILE NOTE: The Tribunal in its decision provides a very brief and simplistic summation of my evidence/comments at the hearing and a [sic] not all together [sic] an accurate one. Hence this file note. The imprecation is that I said everything was to ‘council’s satisfaction’. My recollection of what I actually said was that there were minor breaches, such as the regimented landscape planting rows, breaches that were not of effect and were easily resolved, implying they were not of a nature council would take enforcement action on but would resolve in the process. Mr Byard did not give me much chance to make the point but hurried the hearing on without perhaps focussing. This may explain the discrepancy.
There are a number of issues here: (1) Peter had told the tribunal that he would be at the hearing for the entire first day; (2) the tribunal member asked Peter how long he wanted in order to decide if there were any breaches – and that time was allowed him; (3) you would have thought that, because he was going to an enforcement proceeding that Peter would have taken his responsibilities seriously enough to have actually gone to the site to investigate my allegations just prior to the hearing; (4) he admitted that he had not gone to the site prior, and, instead just sat at the table and looked at the conditions and made decisions on the fly – apparently without even looking at my proofs (over 200 pages of photos and FoI results (some of which related to Peter’s own failings)); (5) when Peter had made his decision that there were really no breaches, Byard[39]was very focused on what Peter had to say, (6) Peter not only repeatedly failed to enforce the conditions of the permit, but also told the tribunal that the regimented rows were the only real issue, and that the issue was under agreement with man X, man Y and CASACIR, with the plantings “to be changed shortly” [and it should be noted that as at February 2014 (3.5 years later when we were forced to sell our property and move) the regimentation had still not been “changed” and Peter was still “satisfied” with that!!].It was interesting to note that Peter apparently did not make any file notes at the time about what happened at or immediately after the actual hearing, and one has to ask why this one was belatedly penned at all – was it penned as a result of my FoI request?Subsequently, it appeared to me that, Peter had (a) demonstrated a strong and continued partiality towards man X, man Y, CASACIR and the quarry and, (b) had ignored and denied the reality of the many significant detrimental impacts on those around the quarry, just as he did when it was just a proposal.
Peter had made notes of some of the breaches that he admitted (obtained under FoI):
- the use of the rock-breaker in breach of the condition demanding best available noise reducing technology;
- dust standards being contravened;
- modifications as being necessary to comply with the EPA document N3;
- construction of the southern bund not completed; and
- community consultation in adequate.
Peter marked some issues as being to his satisfaction although not complied with. Items such as:
- “disturbed surfaces being stabilised” and “sediment control” (this was in spite of no plantings on some areas of the bunds with resultant erosion and sediment running into the waterways), and
- “quality of water discharged” being to his satisfaction in spite of man X, man Y and CASACIR’s claims that it was a closed system with all drainage and wastewater being retained and re-used, and in spite of the demands of a number of conditions that it be so.
In addition, not long before the tribunal hearing Peter had identified that there were certainly breaches in relation to quarry drivers, and Peter noted his satisfaction regardless of truck drivers driving all over the road, including on the wrong side of the road going over hills and around blind bends, and of the drivers not having any penalties for doing so!
Peter provided his (forced) submission to the tribunal that did not address any conditions or the breaches (even though it was an enforcement hearing and he was the “manager of statutory planning, and had the oversight of the quarry from council’s perspective). Instead, he detailed the history of our company’s failed attempts (a) to get man X, man Y and CASACIR to do what they said they would (i.e. comply with their own undertakings), (b) get them to comply with their permit and work authority conditions (because neither Peter nor anyone from DPI seemed to be interested in, or able to, enforce compliance with the conditions), (3) to get them to comply with legislation (because none of the authorities (including Peter) seemed interested in ensuring that legislation was upheld to any large degree), etc.
Peter failed to tell the tribunal that things in man X’s sworn affidavits[40]were not true, even though he knew that this was so – thus covering for man X, man Y and CASACIR, and effectively becoming part of the deception.
On 6 September 2011, Peter wrote a file note listing (1) that Bob Duncan of DPI had advised Peter of a number of permit breaches (and he noted that “when [Bob] did his inspections he tended to concentrate on DPI responsibilities in the Work Authority Area but also tended to look at compliance with the planning permit”), (2) Peter had obviously not been out to assess the situation for himself prior to Bob having made another of his assessments, (3) Peter noted that the inspection on 6 September with Bob was supposed to be a “surprise” visit. However, here it is in Peter’s own words, how both Peter and Bob made sure it was not a “surprise” at all: “[Bob and I had organised] 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 [(the Mt Speed quarry)] but whilst we were waiting Bob drove me around the site”. There they were, saying that they were planning to do a random/surprise visit where no-one would know and therefore not take action to reduce dust or noise. However, we have Peter admitting that (a) Bob called in to the other quarry to tell man X that the visit was occurring and (b) Peter making sure that the quarry knew and advised man X. Then we have them waiting for man X to turn up! A real non-surprise, as was typical – they clearly really did not want to be able to find anything that they might have to take action on. (4) Peter listed a number of planning permit breaches, many of which had been breaches when our enforcement action was before VCAT and about which Peter clearly misled the members [punctuation is as in the original]:
* “The high ground to the east of the works are and within the Works Approval has a large, flat mound of soil stockpiled and Bob said there was another pile around towards the existing [filthy] dam. When I initially arrived before I went onto the quarry I drove around to the end of Pearce Road however I didn’t look in this area looking mainly at the landscaping. I did notice that from the inside of the car fat [sic] the end of the road looking back toward the quarry there was a small area where you could see a bit of the upper level of the excavated face (soil) above the southern bund”.
* “The most obvious issue approaching the site is that the bitumen has been stripped from the Neerim North Road carriageway and it is returned to a crushed rock surface. This was required to be seal under the Permit as was the entrance to the quarry at least to the property line. The road was sealed but the pavement failed due to drainage problems in the subsurface structure. Casacir have acknowledged and indicated they will reconstruct. I rang Alan Nicholls and apparently it had been in the condition for some time and they should reconstruct it”.
* As previously not all the required landscaping has been done. It Is noticeable how much more advanced plants were in some areas. This is most obvious comparing plants on ‘natural’ ground to plants on the bund. Planting in the buffer along Neerim North Rod has had mixed success. The planting at the corner of Pearce an Neerim North Road has still not been done (S W bund) and this is important for screening of the raised car/truck parking area, which is in Stage 2. Landscaping along the northern boundary hasn’t been very successful … The planting on the Southern Bund hasn’t done very well. I think I will leave the issue of the regimented rows for now and ask that when the plant are better grown to remove some as appropriate to de-regimental-ise [sic] it – see what grows and what doesn’t first. I will put this into the follow-up letter to this inspection”.
* “Other matter are as annotated on the attached copy of the Planning Permit. Bob’s main issue seemed to be that the operation seemed to be moving into Stage 2 and there were various requirements of the Permit that come into play before or at that time. This was discussed with [man X] after the inspection. At what point is it clear that works under Stage 2 have commenced? A meeting will be arranged between the parties to agree on a point of demarcation”.
* “I told [man X] the advice that his septic tank permit I approaching lapsing and suggested he give Robyn a call”.
And all those observations were made 10 months after the enforcement hearing!
Peter tried very had to make us look bad by having taken the actions to protect ourselves (because Peter was failing to do so by failing to properly perform his role). So, instead of focusing on the issues before the tribunal and addressing them, he approved of pretty much everything man X, man Y and CASACIR had done, and berated us (and me in particular) for taking the action – this was a blatant aide to man X, man Y and CASACIR and was presumably in an additional attempt to assist them and council to later go for costs against us – which they certainly did (with man X, man Y and CASACIR fighting for council’s costs – but no conflict of interest or collusion there, of course)!
Peter failed to properly address the conditions, backed man X, man Y and CASACIR to the hilt, and sought to make us look bad for taking action against man X, man Y and CASACIR by trying to protect our pre-existing rights because Peter had refused to do so.
Some of the conditions (issued by Peter) in man X, man Y and CASACIR’s permit that Peter deliberately ignored
Peter issued a permit to man X, man Y and CASACIR with the following conditions, many of which required Peter’s “satisfaction”, and all of which, regardless, required his enforcement given that it was a council permit. Let’s see what the conditions were and how good Peter was at enforcing them (or not)[41]:
Permit condition 1:
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- Before the use/development starts, the approved work plan and work plan conditions approved by the responsible authority which will form part of this permit must include the following amendments to the endorsed work plan and/or the draft work plan conditions submitted with the application:
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i. repositioning of the internal pit access road off the top of the southern noise and tree planting bund partially down the northern slope thereof in such a way that a quarry truck traversing the road will not protrude above the height of the bund and any widening of the bund that may be necessary because of this and to maintain a suitable slope;
ii. the location and scale of buildings and fixed plant and equipment, elevations of all buildings and a schedule of construction materials, external finishes and colours and protection signage;
iii. landscape planting of the buffer areas along Neerim North Road north of Pearce Road, the noise bund below the car park and along the northern boundary from Stage One;
iv. location of a wetland treatment area;
v. planting along the common boundary with 27 Palmer Road;
vi. planting in accordance with conditions 22 and 23;
vii. location of surface water diversion drains;
viii. location of a 2.5-3.0 metre high earthen bund extending 50 metres along the northern site boundary east of Palmer Road;
ix. the red line of the limit of extraction joined along the top contour of the bund in the south east corner.
Comment and observation: I had to fight Peter to get him to actually endorse the work plan as part of the planning permit, even though it was a legal requirement that he do so; (i) the repositioning was not as directed as from some locations vehicles could still be seen by protruding over the bund; (ii) there were no locations and/or scales of buildings, fixed plant and equipment, and no elevations of any buildings (in fact, the toilet block was different to that permitted by Peter, but Peter didn’t care), and no schedule of construction material, external finishes or colours, and no protection signage; (iii) although the plantings were shown on the plans, the plantings were not done in accordance with those on the plans in either width or location; (iv) although an open drain was shown as a “wetland” on the plans, man X, man Y and CASACIR had assured the VCAT members that the filthy dam was to be altered to make a proper wetland[42]. However, the reality was that neither the proper wetland, nor even the open drain pretending to be a wetland, were ever actually intended to be built, weren’t built and Peter did not demand that either of them be built – in fact, Peter later approved of an much shorter, narrower, steeper open drain with no settling facility and no way to stop the polluted discharge, in a totally different location, and it was not planted as required; (v) although the planting on the northern boundary was shown on the plans as being 20m wide, it was not planted at all for years and even then was only sparsely planted in a single regimented row of a limited number of plants; (vi) all the plantings were shown on the plans as being generally 20-30m wide, but where there were plantings (which were not in all locations marked on the plans), there were often a smattering of trees, generally in one, two, or occasionally three, regimented rows; (vii) locations of drains that were never installed and not planned on being installed, just there on the plan for the look of it); (viii) the bund was marked on the plans, but was not built to 2.5-3m, was not 50m long, was made entirely of topsoil (in breach of the work plan and planning report), and was not built across the end of Palmer Road as drawn; (ix) the red line of the limit of extraction was not marked as joined at all, let alone along the top of the bund in the south east corner. Yet all those failings met Peter’s “satisfaction” criteria.
Permit condition 2:
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- The endorsed plan/s shall not be altered or modified (whether or not to comply with any statute, rule or local law or for any other reason) without the consent of the responsible authority.
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Comment and observation: Man X, man Y and CASACIR altered plans without council’s consent and for the purposes of misleading VCAT in 2010, but that did not faze Peter.
Permit condition 3:
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- The use of Stage 1 must not commence until the southern bund is constructed to the satisfaction of the responsible authority.
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Comment and observation: Peter acknowledged that the bund still was not complete in November 2010, yet he knew that “use” activities had commenced well over a year earlier (in at least September 2009, and arguably in August 2009) – but it obviously met Peter’s “satisfaction” criteria to have all that additional noise and dust pouring off the site without the bund complete.
Permit condition 4:
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- The use of Stage 2 must not commence until the northern bund is constructed to the satisfaction of the responsible authority.
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Comment and observation: In spite of the man X, man Y and CASACIR’s Figures 3 and 5 being very explicit as to when stage 1 would be completed and stage 2 would commence, Peter allowed man X, man Y and CASACIR to finish stage 1 and commence stage 2 without having completed the prerequisite requirements. In addition, the northern bund was not to the designated height, length and it was built using only topsoil in breach of man X, man Y and CASACIR’s work plan and planning report (both documents being endorsed by Peter as part of the planning permit), and a number of other requirements were not either commenced and/or completed. But all the failings obviously met Peter’s “satisfaction” criteria.
Permit condition 6:
Hours of Operation
6 The use hereby permitted must only operate between the following times:
7.00am – 6.00pm Monday to Friday
7.00am – 1.00pm Saturday, with sale of materials to 6.00pm
No operation on Sunday or Public Holidays
The responsible authority may give its consent for the quarry to operate at other times for the purpose of managing equipment breakdowns or other unforeseen circumstances.
Comment and observation: Whilst the use was not allowed to commence prior to 7am, Peter did not take action against man X, man Y and/or CASACIR for allowing heavy haulage to arrive earlier, road transport trucks to arrive much earlier, machinery and/or equipment to start up and remain running much earlier – all on a repeated basis. Further, Peter did not take action against man X, man Y or CASACIR for working on a public holiday. But all the failings obviously met Peter’s “satisfaction” criteria
Permit condition 9:
Noise
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- Other than during construction activities, all machinery and equipment must be operated so as to comply with a noise limit of 45db(A) in accordance with the ‘Interim Guidelines for Control of Noise in Country Victoria N3/89’ when measured outside the nearest dwellings or any more stringent standard that may be required by legislation. All noise must comply with the requirements of the Work Authority granted pursuant to the Extractive Industries Development Act 1995 and must be operated in accordance with the approved work plan. Towards achieving the above noise limit, the following (not exclusive) techniques must be employed:
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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;
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;
iv. when the rock drill is being operated at the top benches of stages 1,3 & 4 and at the top bench and second top bench of stage 2, no other machinery or equipment must be used or operated at the same time;
v. any rock breaker/rock hammer used on the land must utilise best available noise reducing technology to the satisfaction of the responsible authority and must be used as follows:
a. the rock breaker must not be used in an unshielded location unless this is unavoidable in order to reduce rock to an appropriate size to fit into a haulage truck. If the rock breaker is to be used in an unshielded location it must be used for no more than 15 minutes in a 30 minute period, during which time no other noise is emitted from the site;
b. where possible, rocks should be carried to a shielded area before being broken;
c drilling and blasting methodologies should be designed to minimise the number of rocks requiring secondary breaking.
Comment and observation: Peter made the mistake of ignoring EPA’s statement that the impacts were to meet the 500m buffer standards, and DPI’s requirement of “no unreasonable noise”. The quarry caused much more than “unreasonable” noise and nothing was done about it – but this failure met Peter’s “satisfaction” criteria. Peter also ignored the planning scheme’s demand that there not be any reduction in the quiet, and no increase in the noise levels, he ignored the “more stringent standards” that were required by the planning scheme. Peter totally ignored the legal requirement and refused to demand that (1) the buffer be clearly identified and that (2) man X, man Y and CASACIR own or control the buffer as required by the planning scheme. Peter refused to take action against man X, man Y and/or CASACIR for breaching the noise limits (he did not refer it to EPA and did not go out and take measurements himself). Peter did not ensure that the noise was compliant with the work authority[43]and allowed and overlooked the frequent unacceptable noise. Further, (i) Peter ignored the fact that many of the pieces of equipment did not use broadband smart beepers; (ii) Peter ignored the fact that the haul trucks had not been modified in any way in order to reduce the noise impacts when being loaded; (iii) Peter deliberately ignored the fact that (a) man X, man Y and CASACIR admitted to repeatedly using an entirely unsilenced drill for many months in spite of the permit condition dictating that all drilling must use this drill and their environmental management plan (specifically endorsed by Peter as part of the planning permit) declaring that all drilling would be done with a silenced drill, and (b) even when they very belatedly did commence using a “silenced” drill, frequently did not use the Atlas Copco SmartRig silenced drill[44]that they undertook at VCAT to use[45], (c) ignored the fact that, even though the drills had to be facing a certain direction in order to try to minimise the noise, failed to be facing the correct directions when being operated, and (d) at no time was acoustic shielding places as a barrier or used; (iv) Peter ignored the fact that other machinery was used when the drill was in operation when on the top bench; (v) while the rock breaker was on the quarry floor and therefore not in an “shielded locations” the noise from its use wash horrendous, being in what was effectively an echo-chamber and there were no observed limits on the time used. All these breaches and failings obviously met Peter’s “satisfaction” criteria.
Permit condition 10:
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- During construction activities the noise limit for the purpose of condition 9 is 55db(A). For the purpose of this condition ‘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.
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Comment and observation: Peter allowed man X, man Y and CASACIR to confuse the facts and determine for themselves that the constructions works did not require the demands of noise reduction as were designated in condition 9 (e.g. he allowed them to make the determination that for construction (and he allowed them to determine what was construction and what was use or operational noise) they did not have to use broadband beepers, they did not have to modify the trucks, and that they did not have to use any silenced drill). Peter allowed them to ignore the clear demands of the condition that “any activities that are part of the process of extracting, drilling, moving, processing (including but not limited to rock crushing and breaking) and transporting rock” were “use” activities and not construction activities. But man X, man Y and CASACIR making the false determination and to not even trying to limit the noise obviously met Peter’s “satisfaction” criteria.
Permit condition 12:
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- Within twelve (12) months of the commencement of operation under Stage 1 under this permit, noise tests are to be carried out (subject to the owner’s consent which must be sought) at the dwellings at 565 Neerim North Road, 140 Pearce Road and 140 Palmer Road or at appropriate derived points to test the worst case scenario predictions of Table 2: Noise prediction modelling results in the following three Watson Moss Growcott Acoustics Pty Ltd reports for the proposal:
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i. Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc dated 27 November 2007;
ii. Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc dated 14 November 2008; and
iii. updated Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc modified to include silenced rock drill noise levels combined with other excavation machinery;
for each of the scenarios in the table relevant to that stage and a report on noise registered is to be provided to the responsible authority, the Department of Primary Industries and the Environment Protection Authority. Any recommended modifications to operations necessary to achieve compliance with EPA N3/89 Guidelines must be carried out to the satisfaction of the responsible authority.
Comment and observation: Peter entirely ignored the fact that there were no noise tests performed at 565 Neerim North Road. Peter also ignored the fact that the noise tests which included the “silenced” drill, did not actually include the Atlas Copco SmartRig silenced drill which the members had dictated in condition 9 must be used for all drilling, but used the unsilenced drill with the part cover. But these failings obviously met Peter’s “satisfaction” criteria.
Permit condition 13:
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- Within twelve (12) months of the commencement of operation under each of Stages 2, 3 and 4 under this permit, noise tests are to be carried out (subject to the owner’s consent which must be sought) at the dwellings at 565 Neerim North Road, 140 Pearce Road and 140 Palmer Road or at appropriate derived points to test the predictions of Table 2: Noise prediction modelling results in the following three Watson Moss Growcott Acoustics Pty Ltd reports for the proposal:
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i. Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc dated 27 November 2007;
ii. Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc dated 14 November 2008; and
iii. updated Watson Moss Growcott Acoustics Pty Ltd Report Ref. 10135-3ng.doc modified to include silenced rock drill noise levels combined with other excavation machinery;
for each of the scenarios in the table relevant to that stage and a report on noise registered is to be provided to the responsible authority, the Department of Primary Industries and the Environment Protection Authority. Any recommended modifications to operations necessary to achieve compliance with EPA N3/89 Guidelines must be carried out to the satisfaction of the responsible authority.
Comment and observation: Even though stage 2 had been in progress for well over a year (according to the figures 3 & 5 of the work plan and permit), there was no noise testing done n the first 12 months. In fact, Peter assisted in covering up the commencement of stage 2 having well and truly commenced and the fact that the prerequisites before it could start not having been complied with – but it obviously met Peter’s “satisfaction” criteria
Permit conditions 14 and 15 [emphasis mine]:
Dust Management Plan
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- Prior to the commencement of the usea dust management plan to the satisfaction of the responsible authority must be endorsed under this permit. The dust management plan must be generally in accordance with ‘Dust Management and Monitoring Plan Casacir Pty Ltd – Neerim North Quarry’ forming Appendix 10 of Volume 2 – Appendices to the Submission in support of Planning Permit Application but modified in accordance with the statement of evidence of Dr T Bellair, dated 14 November 2008, part 4.1. The dust management plan must include:
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i. real-time aerosol dust monitoring station which should be at a location to be determined in consultation with DPI;
ii. dust deposition gauges which should be at locations to be determined in consultation with DPI;
iii. contingency measures to deal with any elevated dust conditions.
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- Dust generated by the use must be monitored in accordance with the endorsed plan. Any failure to meet the standards of the State Environmental Management Policy (Air Quality Management) must be notified to the Environment Protection Authority and works/actions specified by that Authority to bring the use into compliance must be carried out to the satisfaction of the responsible authority.
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Comment and observation: Peter ignored the fact that man X, man Y and CASACIR ignored the legal demand that they monitor the site for 12 months prior to commencing any works (so as to set the control levels). Peter allowed man X, man Y and CASACIR to use up to double the amount of “allowed” emissions. Peter ignored the fact that all emissions had to be contained within the WA boundary site, and allowed them to significantly reduce our air quality. Peter ignored the fact that there was no monitoring performed at all for the first 3 to 4 months of works. Peter approved a plan that ignored dust entering many locations of our property without being monitored. Peter ignored the fact that the dust entering our property was frequent and in significant amounts. Peter ignored the elevated dust conditions and my many complaints. Peter ignored the fact that the dust emissions were decreasing our quality of air and the fact that this was in direct contravention of the planning scheme that Peter had the responsibility to enforce – but all those failures obviously met Peter’s “satisfaction” criteria.
Permit condition 16:
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- Prior to the commencement of the use a weather monitoring station must be erected on the land and thereafter operated and maintained, all to the satisfaction of the responsible authority.
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Comment and observation: Peter ignored the fact that the weather station was belatedly installed, and who knows if it was maintained(?) – but it obviously met Peter’s “satisfaction” criteria
Permit condition 17:
Prior Notice to Blasting and Blasting Safety
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- The quarry operator must use its best endeavours to the satisfaction of the responsible authority to give notification of any proposed explosives blast to all occupiers of adjoining land and to any other nearby occupiers who have requested notification. This notification must be given at least 24 hours before each scheduled blast.
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Comment and observation: There was at least one occasion where the 24-hour notice was not provided. Peter also ignored the fact that the planning report (endorsed as part of the permit) specified that additional notice would be given one hour prior to blasting (which did not occur a single time) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 18:
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- All blasting must comply with the following standards:
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Ground Vibration: <5mm/s for 95% of blasts within a 12 month period
<10 mm/s for all blasts
Air Vibration: <115 dbL for 95% of blasts in a 12 month period
<120 dbL for all blasts
Comment and observation: There was one occasion that I am aware of where the air vibration exceeded the limit (how many more were there that I was unaware of(?) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 19:
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- Initial air and ground vibration monitoring must be undertaken of five initial blasts close to the nearest dwelling at the quarry boundary. The measured vibration level at the nearest dwelling must be reported to the responsible authority.
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Comment and observation: The level of at least one of the blasts was over the “allowed” limit – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 20:
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- As blast faces reach within 200 metres of roads accessible to the public, traffic must be stopped during the period of pit clearance until after the ‘All Clear’ is sounded.
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Comment and observation: It did not matter that such closing of the road was of gross inconvenience to us and that, clearly, the blasting was too close to the road to be safe – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 21:
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- No blasting is to occur within 50 metres of the north boundary of the subject land.
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Comment and observation: It was immaterial to Peter that 150m of the 200m buffer to the north was on land owned and controlled by entirely others, that the quarry could not actually blast within 200m of the boundary and that none of the quarry people, the blasters, WorkSafe or the police could not make the owners/controllers of that land move from their own land – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 22:
Landscaping
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- Landscaping must be undertaken with the intent of achieving as effective a visual screen as possible as early as possible in the operational life of the quarry to the satisfaction of the responsible authority. Landscaping along the northern Work Authority boundary, the western Work Authority boundary, south of Pearce Road and north and south of the existing clean water dam as delineated on the work plan must be carried out prior to commencement of the use. As the bunding is completed along the southern Work Authority boundary, the completed bunding must be landscaped. Landscaping must be in native species predominantly of those local to the area and not laid out in regimented lines and must be maintained to the satisfaction of the responsible authority. The vegetation must be replaced if death or dieback occurs.
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Comment and observation: Peter had made it a legal requirement that plantings were required in certain locations as “as early as possible … and ideally as soon as possible after the date of the permit”., and that “Landscaping must be undertaken with the intent of achieving as effective a visual screen as possible as early as possible in the operational life of the quarry to the satisfaction of the responsible authority. Landscaping … as delineated on the work plan must be carried out prior to commencement of the use”. However, Peter did not actually require this and, in spite of being advised that it had not been done, he continued to ignore it on many occasions and there were no repercussions for yet another breach. In effect, Peter told the tribunal that he was “satisfied” that no plantings had been done where I said they had not been done. Further, in being confronted with the fact that there are no plants in certain locations, he said that there had been a rabbit problem (interesting that that problem was only in areas where there has never been any sign of plantings) – but his claim of rabbits only shows that Peter has condoned man X, man Y and CASACIR’s failure to comply with the work authority’s condition for control of pest animals and the permit’s condition of replanting when plants die.The condition also required that “Landscaping … [is not to be] laid out in regimented lines and must be maintained to the satisfaction of the responsible authority”, however, the planting that had occurred was predominantly in “regimented lines” – but, in spite of Peter telling the tribunal that an agreement had purportedly been made for the “un-regimenting” of the rows over a year earlier, the plantings were still regimented years later.None of the plantings were in accordance with the width of the plantings shown in the figures provided by man X, man Y and CASACIR but Peter did not take issue with that either. It was therefore proved entirely immaterial to Peter (1) that man X, man Y and CASACIR failed to plant in a timely fashion, (2) that many required plantings were not planted at all, (3) that the majority of the plants that were planted were planted in regimented rows, (4) that the plantings were not maintained and (5) that plantings were not replaced as required – and that it obviously met Peter’s “satisfaction” criteria.
Permit condition 23:
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- Prior to commencement of the use the land identified as Lot 1 TP 23437 (being the land to the south of Pearce Road) must be landscaped with vegetation indigenous to the area so as to provide a suitable screen of the quarry site from the land to the south to the satisfaction of the responsible authority. The landscaped area must extend a minimum of 25 metres south of Pearce Road. The vegetation must be maintained in good health and must be replaced if death or dieback occurs.
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Comment and observation: It proved immaterial to Peter that the plantings were not planted in a timely manner, and that they were planted in regimented rows in spite of the requirements of condition 22– but it obviously met Peter’s “satisfaction” criteria.
Permit condition 24:
Building materials
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- External cladding materials of the building(s) must be of finishes with low relative reflectivity levels and in colours selected to blend into the surrounding landscape rather than provide a contrast that highlights the building in the landscape. The selection of materials and colours must be to the satisfaction of the responsible authority.
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Comment and observation: It proved immaterial to Peter that the schedules of buildings and colours required by condition 1 were not provided, that the finishes were not in compliance with the very few specified colours, and that the original office block for a number of years was stark white, on the top of a hill and that it really stood out offensively rather than even attempting to make to blend in – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 25:
25 All wastewater generated on the site must be retained and treated on the site.
Comment and observation: The work plan and planning report (both endorsed by Peter as part of the planning permit over which he had pre-eminent authority), stated that the site would be entirely a closed, retention and re-use site and that there would be no wastewater or drainage allowed to escape the site, and this condition and condition 39 demanded it, but in spite of the assurances and demands that there would be no discharges, the facts were that there were no mechanisms stopping the drainage or wastewater from exiting the site, and in facts man X, man Y and CASACIR actually ensured that quarry wastewater and drainage exited the site – but such blatant disregard for undertakings and the condition obviously met Peter’s “satisfaction” criteria.
Permit condition 26:
26 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 and must be continued until Stage 2 works commence.
Comment and observation: While this was a WGCMA conditions, because it was in the planning permit it came under Peter’s authority. Instead, Peter actively assisted man X, man Y and CASACIR to avoid the need for the monitoring program to commence prior to stage 1 commencing, and was happy that the “control” levels were based on polluted criteria – but such appalling conduct by man X, man Y and CASACIR obviously met Peter’s “satisfaction” criteria.
Permit condition 27:
27 Prior to Stage 2 works commencing and based on the results of the flow and water quality monitoring program, a spring water management plan to the satisfaction of the West Gippsland Catchment Management Authority is required. The plan will need to ensure that no adverse impacts to downstream waterway health result from the activities including impacts once quarrying operations have ceased.
Comment and observation: While this was a WGCMA conditions, because it was in the planning permit it came under Peter’s authority. Instead, Peter allowed man X, man Y and CASACIR to produce a management plan that revealed his approval of the destruction of Kookaburra Creek and its catchment area, its aquifers, the spring that fed it and its headwaters (and the removal of that water from us in spite of our legal rights to that spring water), and approved (in breach of conditions and undertakings) the replacement of the spring water with the quarry drainage and wastewater which was proved to be polluted by hydrocarbons, Ecoli and other such pollutants (in the face of our strong and repeated objections) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 28:
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. No licence will be granted by the Authority until the spring water management plan has been approved by the Authority.
Comment and observation: While this was a WGCMA condition, because it was in the planning permit it came under Peter’s authority. Instead, Peter allowed and ignored the fact that man X, man Y and CASACIR had already done illegal works on Kookaburra Creek and that we had had to take legal action against man X, man Y and CASACIR to have the flow restored. Peter even minimised the illegal diversion of the flow and referred to the restoration forced on man X, man Y and CASACIR by the legal action as being simply “piping alongside of the road to the culvert”, but otherwise ignored the illegality and dismissed it. Peter even ignored the fact that he knew that man X, man Y and CASACIR had committed fraud by signing the agreement for the restoration of the flow because Peter knew that they could not and would not comply with the agreement in the long-term – all because it obviously met Peter’s “satisfaction” criteria.
Permit condition 29:
29 Prior to the commencement of Stage 2 a drain to divert surface water entering the site from the north towards and into the head of the gully to the east of the extraction area must be constructed to the satisfaction of the responsible authority.
Comment and observation: Peter ignored the surface drain not being built, certainly before stage 2 commenced (and is probably still not built even though man X, man Y and CASACIR have been in stage 2 since at least late 2012) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 30:
30 Prior to the commencement of Stage 2 provision must be made for replacement flows into the gully to the south and to the northeast of the Work Authority area to the satisfaction of the responsible authority.
Comment and observation: There was no commencement of any “replacement flow” (the quarry’s discharge of polluted drainage and quarry wastewater in breach of their undertakings, condition 25 (see above), condition 39 (see below), and the law) into either Kookaburra Creek or the north-east spring, regardless of the condition’s demand (and even in early 2019 – 7 years after stage 2 commenced, there was still no “replacement flow”) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 31:
31 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.
Comment and observation: Man X, man Y and CASACIR had proposed that they not have to construct the section of road at all for at least 12 months but that, if they must do something, that they apply a simple spray seal. VCAT adamantly refused this and designed the condition Peter inserted into the planning permit. However, as was sadly typical, man X, man Y and CASACIR ignored the condition and did a simple spray seal which quickly broke down under the weight of the quarry traffic, and had to be repaired and the repairs repaired again and again. This was before man X, man Y and CASACIR dropped back to their first suggestion of just leaving the road for the first 12 months (they pulled up the entire section road and left it gravel for well over 12 months). Further, they refused to repair the road and did not build it to “to a point at least 5 metres past the proposed entrance to the quarry”,and did not submit any plans or specifications as to how they would build the road – but all those failures obviously met Peter’s “satisfaction” criteria.
Permit condition 32:
32 Prior to commencement of the use access to the quarry from Neerim North Road must be upgraded/constructed and sealed, at least up to the property boundary for a semi-trailer in accordance with Vic Roads standard drawing SD 2062 Typical Driveways – Single Unit, Prime Mover/Semi-trailer and B Double.
Comment and observation: The access was not built “for a semi-trailer in accordance with Vic Roads standard drawing SD 2062 Typical Driveways – Single Unit, Prime Mover/Semi-trailer and B Double” – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 33:
33 Prior to commencement of the use the applicant must install new ‘Truck Entering’ signs on Neerim North Rd on both approaches to the quarry entrance as part of the road construction works.
Comment and observation: The installation of those signs was very belated – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 34:
34 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.
Comment and observation: Council’s engineers as well as man X, Man Y and CASACIR’s own traffic and road specialist specified that the existing road (other than the part requiring new construction in condition 33) was noted to be of good and satisfactory condition and was capable of carrying the quarry traffic, and this was not disputed at any time by man X, man Y and/or CASACIR before their quarry traffic destroyed large sections of it. However, the amount of heavy haulage (carrying haul trucks, excavators, drilling machines, dozers and the like, together with 48+ tonne trucks with rock) wrecked the road and man X, man Y and CASACIR demanded that council pay for the repairs on the road man X, man Y and CASACIR had destroyed, and that council pay for all repairs in order to bring it up to a quality road that man X, man Y and CASACIR were satisfied with, before man X, man Y and CASACIR were willing to consider paying for any maintenance, let alone repairs. In fact, prior to the permit being granted to them, they claimed that they should only have to make a contribution to the road works, and even after their permit was granted, wrote to council and stated that they would be willing to “contribute” $5,000 for the year from October 2009 to October 2010 towards repairs! – but it all obviously met Peter’s “satisfaction” criteria.
Permit condition 36:
36 Speed advisory signs on Neerim North Road at bends in the vicinity of Matheson Road and Murphy Road as specified by the responsible authority, a ‘T-intersection’ advance warning sign in Neerim North Road on the western approach to Laidlaw Road and a ‘Stop’ sign on Laidlaw Road must be installed at the permit holder’s cost prior to the use commencing.
Comment and observation: Speed advisory signs were not erected in the time required, and no “stop” or “T-intersection” signs were installed when required – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 37:
37 The operators must adopt and operate a code of conduct for drivers of vehicles involved in the use to the satisfaction of the responsible authority, and shall also make drivers of vehicles not under the operator’s control aware of this code and encourage their compliance. The code shall address the need for safety and adherence to speed restrictions and safe operating speeds along rural roads traversed in accessing the quarry noting the presence of other road users such as farm vehicles, horse riders, school buses, the potential for stock on the roads at stock crossings or stray animals and wildlife, potential poor driving conditions due to weather and the need for care through townships en route, and avoidance of the use of air brakes therein. A penalty system shall be applicable to drivers under the operator’s control found in breach of this code. The code and penalties therein must be implemented in an effective manner to the satisfaction of the responsible authority.
Comment and observation: The code of conduct was approved by Peter. It stipulated behaviour for quarry truck drivers, including a one month suspension for the first offence and a one year suspension for a second offence. However, in total disregard to that code, on many occasions trucks were driven “all over the road” over double and single unbroken lines (i.e. on the wrong side of the road) around blind corners or over hills, and nothing was done about it. I contacted Peter on 7 April 2010 regarding this safety issue and even provided a number of photos of a couple of incidents. Finally on 22 July 2010 Peter responded: “I advised Casacir of the evidence of the truck crossing the double lines verifying the breach of the driver’s code of conduct at the last inspection I did on site. There is a record of the event on the file with your photographs etc. Given this is the first incidence and the nature of it that is all that is warranted. ….”, but nothing further was done. Since the condition requires “the code and penalties therein must be implemented in an effective manner to the satisfaction of the responsible authority” the failure of the drivers to drive safely, the failure of the drivers to keep to the Code, the failure of an X, man Y and CASACIR to enforce the code, all met Peter’s “satisfaction” criteria.
Permit condition 38:
38 Trucks carrying product from the quarry leaving the site must be covered to limit dust or stone coming off the load to the satisfaction of the responsible authority whilst traversing public roads.
Comment and observation: Trucks generally did have covers on, but any car behind still had the duco and windscreen sandblasted – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 39:
39 Measures to prevent contaminated water or sediment leaving the site or entering drainage lines must be implemented before earthworks begin on site.
Comment and observation: Although this condition was inserted by the EPA, because it is in the planning permit, it came under Peter’s jurisdiction. The work plan and planning report (both endorsed by Peter as part of the planning permit over which he had pre-eminent authority), stated that the site would be entirely a closed, retention and re-use site and that there would be no wastewater or drainage allowed to escape the site, and condition 26 and this condition demanded it. However, in spite of the assurances and demands that there would be no discharges, the facts were that there were no mechanisms stopping the drainage or wastewater from exiting the site, and in fact, man X, man Y and CASACIR actually ensured that quarry wastewater and drainage exited the site – but such blatant disregard for undertakings and the condition obviously met Peter’s “satisfaction” criteria.
Permit condition 40:
40 Prior to the commencement of works the permit holder shall develop and have approved in writing by the responsible authority a contingency plan for the storage or removal of contaminated water in the event that proposed storage capacity/retention ponds become full during any period of abnormally high rainfall events.
Comment and observation: To my knowledge no such plans were ever produced, the only plans were in regard to spraying the adjacent paddocks with the contaminated water, and sending it as part of the “replacement flow” into Kookaburra Creek (and therefore our property as it was at the time) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 41:
41 The operator must ensure that any excess flows of water diverted from the site to an existing drainage line under Palmer Road do not detrimentally impact upon the drainage line by causing erosion or any other damage.
Comment and observation: Clearly this condition contradicts conditions 25 and 39. Further, there were no plans provided or any manner provided by which they intended to ensure this condition was met (which was impossible anyway) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 42:
42 Sewage, sullage and other liquid wastes to arise from the development shall be treated and retained on site by a septic tank system in accordance with the requirements of the Environment Protection Act 1970, the current Septic Tank Code of Practice 2003 and the Baw Baw Shire Council.
Comment and observation: Peter knew they did not have a septic permit (he did know they were using a “holding tank” system – but he also knew they did not have a permit for that either). Peter also knew that the location planned for the septic was one which would have pollutants leaching into Kookaburra Creek (and our then property) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 43:
43 No chemical dust suppressant shall be used on the subject land without the prior written permission of the responsible authority.
Comment and observation: Even though dust suppressant as frequently required, none was ever applied (even water was often not applied when required) – but it obviously met Peter’s “satisfaction” criteria as he simply did not care about the dust impacts.
Permit condition 44:
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- Prior to the commencement of works the land comprising CA178 (TP283848Q), CA181 (TP65832Y) and CA182 (TP590111H), and CA179 (TP23437S) must either be consolidated into one parcel or the owner of the land must enter into an Agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987. The cost of enforcement, removal or other dealing associated with the Agreement shall be borne totally by the owner of the land. The Agreement must be registered on the certificate of title for the land. Evidence of the registration of the Agreement must be provided to the responsible authority prior to the commencement of any use, subdivision, buildings or works authorised by this permit.
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The Agreement must provide that the parcels of land the subject of this permit must remain in the same ownership for the life of the permit.
Comment and observation: The titles were not consolidated and there was no s173 for many months after it was required. – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 45:
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- All disturbed surfaces on the land resulting from the activities authorised by this permit shall be revegetated and stabilised to the satisfaction of the responsible authority so as to prevent any erosion or siltation on or adjacent to the land.
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Comment and observation: Disturbed surfaces were not stabilised at all, and were not re-vegetated in a timely manner (if at all), with siltation and erosion frequently occurring, especially sending sediment into Kookaburra Creek and what was at the time, our property – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 46:
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- Use and development must follow sediment control principles outlined in ‘Construction Techniques for Sediment Pollution Control (EPA 1991)’ and must be to the satisfaction of the responsible authority. Specifically, the applicant must ensure:
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i. grading, excavation and construction must not proceed during periods of heavy rainfall;
ii. sediment traps must be designed, installed and maintained to maximise the volume of sediment trapped from the site during development and construction;
iii. the extent of earthworks during construction shall be minimised and disturbed areas stabilised and revegetated following the completion of works.
Comment and observation: The “Construction Techniques for Sediment Pollution Control (EPA 1991)” were not followed, “grading, excavation and construction” occurred during heavy rainfall, there were no “sediment traps” inside the site, and the few outside the site were grossly insufficient – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 47:
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- Prior to any drainage discharge occurring to the east from the works area onto the land affected by the Erosion Management Overlay under the Baw Baw Planning Scheme, plans and specification of the drainage system must be lodged with and approved by the responsible authority. The plans must demonstrate adequate provision to ensure that the discharge will not cause erosion, pollution or other environmental detriment.
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Comment and observation: There were no plans or specifications for any “drainage system”, and how can there be a drainage system into the erosion management overlay when they are not allowed to discharge any drainage at all (see conditions 25 and 39 and man X, man Y and CASACIR’s undertakings in their planning report and work plan (but they did discharge regardless, regardless that any such discharge went into the Latrobe River system – which ended in the Gippsland Lakes system – which is a RAMSAR site) – but it obviously met Peter’s “satisfaction” criteria.
Permit condition 48:
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- The gates at the end of Palmer Road at the northern Work Authority boundary must be kept locked at all times except if access is required in an emergency situation or for vehicles involved exclusively in the farming/ maintenance of the land outside the Work Authority.
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Comment and observation: Peter was fully aware that the site was not and still is not secure. Keeping gates locked is one thing (when they are locked, that is), but when the gates have holes in the wire large enough for any person to easily get through, and are abutted by fencing of such loose 3 wire construction, it is dubious at best as to the benefit (and the security of the site is also impacted by gates into the quarry left unlocked and/or wide open when the quarry is unattended, and a number of other sections of fence were and are also of loose wire) – but it obviously met Peter’s “satisfaction” criteria. Peter, by his recommendations and failures to enforce legislation caused the Neerim North area around the quarry to no longer be safe. Peter made the decision to: (a) allow flyrock exclusion zones to be on land owned and controlled by others – which is unlawful, and (b) do nothing when advised that CASACIR’s truck drivers were driving on the wrong side of unbroken lines over hills and around blind corners, speeding, and have material fall off the back and hit cars – so this lack of sfety all met Peter’s “satisfaction” criteria.
Permit conditions 49 & 50:
49 When the quarry is rehabilitated the bed of the internal edges of the water body must be graded in accordance with the DPI Guidelines on Rehabilitation and in accordance with the work plan to the satisfaction of the responsible authority.
50 A visible example(s) of the type of columnar and fan jointing in the ‘Tertiary Older Volcanics Rock Structures (the basis of the site’s recording –133018 Neerim North – by the Australian Geological Society (Vic)’ must be left exposed as part of the rehabilitation of the quarry so that it can be accessible to geology students and other interested parties (subject to access being negotiated) unless the responsible authority is satisfied that no such examples remain after the approved quarrying or that such is impractical due to safety or other technical reason.
Comment and observation: Peter had noted issues with rehabilitation but I have been unable to discover anything he did about those issues. For example, Peter failed to ensure that the rehabilitation leaves no property in a worse state than prior to the quarry and this fails – our property would have lost the entire natural flow of Kookaburra Creek together with the removal of flow from the aquifers which man X, man Y and CASACIR intend to destroy by excavating through them. Further, the discharge of wastewater and drainage from the so-called wetland (which is going to be a short shallow open drain) would have been removed – but all this apparently met Peter’s “satisfaction” criteria. Further, the end plan was supposed to be to plant agroforestry on the benches – yet man X, man Y and CASACIR knowing that there was already insufficient topsoil and overburden, have sold overburden and topsoil, and have used overburden and topsoil in bunds, thereby reducing any potential of having material in which trees could grow. In addition, they claimed the reason they had breached condition 22 regarding planting around the filthy dam was because it was on rock and they couldn’t plant there (this was a false claim and just an excuse for not having planted there, but go with me). So they didn’t plant in one area because it was supposed to rocky, yet they are claiming that the solid rock benches will be fine for agroforestry(!) – illogical, but it obviously met Peter’s “satisfaction” criteria.
Permit conditions 51 & 52:
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- The use and development of the subject land must not commence until the Work Authority is granted in accordance with the requirements of the Extractive Industries Development Act 1995. The use and development of the subject land must at all times be in accordance with the Work Authority, including the approved work plan, issued pursuant to the Extractive Industries Development Act 1995.
- This permit will expire if the Work Authority for the use issued under the provisions of the Extractive Industries Development Act 1995 is cancelled in accordance with section 24 of that Act.
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Comment and observation: Whilst this is a condition inserted by the then Department of Primary Industries, it comes under Peter’s jurisdiction by being in the planning permit which bears his signature. In spite of the “use and development of the subject land” not being in accordance with the work authority or work plan (which Peter endorsed as part of the planning permit), Peter did nothing about it – but no wonder since he ignored his own planning permit conditions, but it obviously met Peter’s “satisfaction” criteria.
Permit condition 53:
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- Prior to the commencement of works the applicant must provide a brief hydrogeological assessment to Southern Rural Water. The assessment must address but be not limited to:
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Aquifer Conceptual Hydrogeology
i. aquifer identification and known aquifer characteristics at the work site; is groundwater at this site confined or unconfined at this locality?;
ii. known trends in aquifer behaviour (eg increasing drawdown decreasing quality);
iii. has groundwater in this locality a beneficial use?
Potential Impact to Groundwater
i. whether the proposal will cause unacceptable pollution to groundwater;
ii. whether the proposal will impact on the natural movement of groundwater.
Surface Water Features
i. identify any surface water features within close proximity and assess whether this proposal will impact on the water quality and quantity, including springs and waterways. If so, to what degree?
Comment and observation: Whilst this is a condition inserted by Southern Rural Water, it comes under Peter’s jurisdiction by being in the planning permit which bears his signature. Man X, man Y and CASACIR did not wait for the provision and/or approval of the hydrogeological report before commencing works, and the assessment was derelict in that it failed to properly identify the required facts, including failing to identify the beneficial uses and the impacts on the quality and quantity of water in springs and waterways – but the failures and inadequacies obviously met Peter’s “satisfaction” criteria.
Permit condition 54:
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- The permit holder must to the satisfaction of Southern Rural Water:
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i. 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;
ii. determine the extent of the impact based on reasonable assumptions and how it intends to mitigate or compensate for the potential adverse impacts;
iii. describe what contingency plan is in place if an unanticipated water source is intercepted during the development of the quarry, ie how will they contain the discharge and disposal of water;
iv. consider the need to obtain a licence if it is identified that the excavation is likely to intercept water.
Any recommendations arising out of these investigations must be implemented to the satisfaction of Southern Rural Water.
Note: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.
Comment and observation: Whilst this is a condition inserted by the Southern Rural Water, it comes under Peter’s jurisdiction by being in the planning permit which bears his signature. Man X, man Y and CASACIR entirely failed to identify all the waterways and springs affected, failed to provide any information about the parties impacted, and entirely failed to identify how they would compensate any affected parties (including, but especially, us). In addition, knowing the they would be intercepting (quarrying through) aquifers, catchments, a spring, and a waterway (Kookaburra Creek), they entirely failed to take into consideration that they would need a take and use licence, failed to even attempt to obtain one, and did not obtain one for at least almost a year in breach of the law – but ignoring the conditions and breaking the law obviously met Peter’s “satisfaction” criteria.
Permit condition 55:
55 Prior to the commencement of the use groundwater monitoring bores must be drilled on the site to the satisfaction of Southern Rural Water. The results from the groundwater monitoring bores must be reported to the responsible authority and to Southern Rural Water every 12 months.
Comment and observation: Whilst this is a condition inserted by the Southern Rural Water, it comes under Peter’s jurisdiction by being in the planning permit that bears his signature. In spite of the fact that (1) not one of the bores was drilled to a depth to discover each aquifer, (2) one of the bores was drilled into overburden and was known that it would therefore be entirely inadequate, (3) the other 2 bores were drilled into locations that put the bores at serious risk of pollution and damage, (4) the fact that one bore was ripped out without having been decommissioned, (5) a required 4thbore was not drilled for a year after it was required, (6) the monitoring did not commence prior to the works commencing, and in fact did not commence until well after the impacts would have commenced, (7) the fact that the polluted results of the monitoring were used as the “control” measures, and (8) the fact that all the documentation put the bores in contrary locations. Peter was made aware that one of the water monitoring bores was useless. In fact, he noted in a file note dated 22 September 2009 (after a visit to the site) that “[CASACIR] seemed to be up-front with their comments, even to pointing out that [she] had picked up that one of the monitoring stations put in (at the far south east corner of the works area) was located on fill and would be ineffectual for the purpose”. However, instead of Peter requiring that a new bore be dug immediately (or at any time since), it apparently met his “satisfaction” criteria that one of the only first three bores was “ineffectual”.It apparently also met Peter’s “satisfaction” criteria that the monitoring plan provided by CASACIR (which plan was endorsed by Peter as part of the permit) was inaccurate and that the western bore is close to the septic tank and lines and was therefore subject to contamination.In fact, Peter was apparently not the least concerned that at least 2 required monitoring reports had not been provided – this all obviously met Peter’s “satisfaction” criteria.
Permit condition 56:
56 A contaminants spill containment kit must be available at all times that machinery is being used in the quarry pit.
Comment and observation [emphasis mine]: 17.1 and 17.4 of the DPI audits dated 9 March 2010 (7 months after works commenced) and 2 August 2011 (2 years after works commenced) respectively noted the work authority’s demand that “[Man X, man Y and CASACIR] must take all reasonable measures to prevent contamination of the environment by the release of fuels, lubricants and/or hazardous materials” and “[Man X, man Y and CASACIR] must ensure that all mobile plant and machinery, including mobile fuel storages re fitted with spill prevention and clean up equipment”. The audits of thereby noted man X, man Y and CASACIR’s continued failure to comply with condition 56 of their planning permit. The audit of 7 March 2010 also stated [emphasis mine]: “Part [compliance] Fuel tank is bunded. Concrete slab to be installed for fuelling. Triple interceptor to be installed. Container to be installed for hazardous materials. Spill kit for pit emergencies to be located in pit” and “Spill kit to be provided”. Further, the audit 2 August 2011 noted man X, man Y and CASACIR’s continued failure to comply with condition 56 of their planning permit 2 years after having commenced works by respectively stating [emphasis mine]: “Part [compliance] Fuel tank is bunded and fuelling pad is in place. Containment to be installed for hazardous materials. Spill kit for in pit emergencies to be located in pit. Service bay is not provided for mobile plant. The use of, and servicing in pit crushing plant needs to be managed” and “Spill kit to be provided”. So, with machinery having commenced in the quarry site on at least 4 August 2009, after 7 months and then after 2 years, the spill kit had still not been installed and Peter had not required it – but the failure to provide it obviously met Peter’s “satisfaction” criteria.
Permit condition 57:
57 The permit holder must comply with the requirements of the Water Act1988, to the satisfaction of Southern Rural Water.
Comment and observation: Whilst this is a condition inserted by the Southern Rural Water, it comes under Peter’s jurisdiction by being in the planning permit that bears his signature. In fact, one of Peter’s roles is to ensure that the Water Act is complied with, yet the fact that man X, man Y and CASACIR ignoring of the legal demands of the Act were ignored Peter, and he also ignored their illegal works – obviously all the illegal works met Peter’s “satisfaction” criteria.
Permit condition 58:
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- The quality of any water discharged from the site (including but not limited to the flows to the gully to the south of the land) must be tested and maintained to the satisfaction of the responsible authority, Southern Rural Water and West Gippsland Catchment Management Authority. The testing must include the following:
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i. routine groundwater and surface water sampling of the sump, two dams, and drainage line, should be undertaken to assess water quality during quarry operation and two years after rehabilitation. The samples should be analysed for major ions, pH, EC, turbidity and hydrocarbons by an accredited NATA laboratory;
ii. confirm the groundwater beneficial use based upon the analytical results;
iii. undertake further modelling to optimise the settling dam and farm dam (top dam) capabilities. This may require a deepening of the settling dam to provide for a suitable freeboard;
iv. prepare a contour drain section and level design based upon peak flow estimates at various locations along the drain.
Comment and observation: This condition is entirely contrary to conditions 25 and 39, and to the assurances and undertakings in man X, man Y and CASACIR’s work plan and planning report that there would be absolutely no discharges and that the site was entirely a closed, retention and re-use site. Further, the failures are detailed in my comments on other conditions – but the failures obviously met Peter’s “satisfaction” criteria.
Permit condition 59:
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- The operator of the quarry hereby approved must engage in community consultation in the form of routine annual community meetings to inform the community of the progress of the quarry and to register community concerns with respect to the operation of the quarry, to the satisfaction of the responsible authority. Invitations to the meetings shall be via a Public Notice posted in the relevant local newspaper at least one week prior to the meeting date. Confirmation of the meetings held shall be in the form of meeting minutes submitted to council within one week of the community meeting being held. The operator of the quarry hereby approved must hold a minimum of two community consultations per annum.
Comment and observation: Peter was fully aware condition 59 stated that there was a requirement for 2 community consultations a year, and in fact reminded Jack that there had not been a second meeting in 2010. However, Peter was at the meeting on 27 September 2010 when Jack falsely said that he “was unaware that there had to be two meetings a year” in spite of just days earlier telling Peter that he had been reminding man X of the need for the two meetings! – but Peter did not dispute him, in spite of knowing that Kraan had deliberately lied to the community.Peter did not insist upon a second one that year and was obviously “satisfied” to have man X, man Y and CASACIR not have the second meeting and to be deceptive about it. In fact, (1) in spite of the permit demanding 2 community consultations a year, man X, man Y and CASACIR rarely had two a year in other years and baulked at even having one, (2) the concerns of the community were largely ignored, (3) man X and CASACIR usually refused to take questions from me, defaming and belittling me, and making a mockery of me, (3) man X, man Y and CASACIR lied / authorised lying to the community about what had been done (when it frequently had not), how compliance had been accomplished (when it often had not), and so on – but it obviously met Peter’s “satisfaction” criteria.
Drainage & pollution to surface & groundwater
In addition to my comments in relation to conditions on this topic, Peter acknowledged that drainage had gone off site (washing sediment off the bunds) in spite of man X, man Y and CASACIR’s fraudulent claim that it was a closed, retention and re-use site. Further, this drainage was going into Kookaburra Creek, and Peter did nothing about it.Peter ignored the fact that the work plans and planning reports and relevant specialists’ reports all stated that the refuelling and servicing would be performed upon concrete pads with triple interceptor traps and not in the excavations. However, the servicing and refuelling has been (and probably still is) performed in the paddocks and excavations areas and there was no concrete pad with a triple interceptor pads upon which vehicles, machinery, or equipment could be serviced or re-fuelled for over a year (in spite of man X swearing under oath that he knew that it was a legal requirement – but no enforcement orders or repercussions were forthcoming because this apparently met Peter’s “satisfaction” criteria.
Commencement of works and use
In addition to my comments in relation to conditions on this topic, Peter endorsed conditions that specified certain things that had to be performed before any works commenced: e.g. conditions 39, 40, 44 and 53, but he then ignored the fact the conditions were not met before the works commenced. So commencing the works before having met the conditions apparently met Peter’s “satisfaction” criteria.Peter endorsed conditions that specified certain things that had to be performed before any use commenced: e.g. Conditions 3, 14, 17, 22, 23, 26, 31, 32, 33, and 36, but he then apparently ignored the fact that conditions were not met before the use commenced. So commencing the use before having met the conditions apparently met Peter’s “satisfaction” criteria. And then there were the conditions that had to be complied with before stage 2 commenced, but they have been ignored too. Clearly it is irrelevant what conditions need to be complied with (because they all need to be complied with) – Peter will ignore the breaches.
Dust
In addition to my comments in relation to conditions on this topic, Peter ignored the fact that man X, man Y and CASACIR would be unable to comply, or be disinterested in complying, with the dust and air quality requirements while building the bunds, operating the quarry, during blasting, while waiting for the groundcover to grow and during times when the site was unattended (nights, Sundays, public holidays etc).In addition, Peter endorsed the Dust Monitoring Plan as part of the permit and ignored the fact that the Plan was not complied with, and ignored the fact that significant dust has exited, and is probably still exiting, the site – but these failures to meet the conditions clearly met Peter’s “satisfaction” criteria.
Blasting
In addition to my comments in relation to conditions on this topic, Peter was aware that the planning report, produced by Jack Kraan and endorsed apart of the permit by Peter, clearly stated that there would be a warning to all neighbours one hour prior to the blasting and this did not ever take place from 2009 to 2014 (and is unlikely to be taking place even now), and that man X, man Y and CASACIR stated in a letter to council dated 11 December 2009: (1) that CASACIR’s company policy was to ring neighbours again two to three hours prior to blasts (in contradiction to the planning report); but they failed to do so and Peter was not holding them accountable for not doing so, (2) that the road would only be closed up to four times a year (and it was often closed 10 times or more a year), (3) that the road would only be close for 15 to 20 minutes (e.g. on a number of occasions the road was generally closed for 40 minutes or more) – but all these failures and impacts on neighbours meet Peter’s “satisfaction” criteria.
Traffic & road quality / maintenance
In addition to my comments in relation to conditions on this topic, Neerim North Road and Pearce Road are both public roads and residents and visitors reserve the right, and have the right, to travel on them any time of day and/or night and to be safe on them.Council engineers and man X, man Y and CASACIR’s specialists stated that the Neerim North was (before the quarry trucks impacts) of sufficient standard to carry the trucks that were proposed. Peter, however, failed to take into consideration the impact on the road users of trucks up to 11 hours a day for 6 days a week, and the fact that CASACIR would be using much larger bigger trucks than stated when applying for their permit, and carrying heavier loads than undertaken to be carried (38 tonne or more instead of the 28 tonne undertaken).Peter was initially prepared to have the rate-payers pay for road maintenance and upgrades for the damaged cause by quarry trucks, with the quarry perhaps required to “contribute” – but to no stated level of contribution. This attitude has continued in spite of subsequent permit conditions requiring that man X, man Y and CASACIR pay all costs and keep the road in a maintained condition. In fact, there has been a claim by man X, man Y and CASACIR that it was council’s responsibility to provide them with a quality road prior to the use of the road by CASACIR. It is my understanding that if a developer wants to develop, that developer is responsible for the infrastructure required – but not so with man X, man Y and CASACIR, they appear to get preferential treatment!! Perhaps this is where one of the alleged areas of conflict of interest could be deemed to show. On a side note with regard to this, the quarry commenced infrequent use of the road (by heavy vehicles) in 2006, and with some in 2008 but commencing very heavy and consistent usage in July 2009 – yet the road repairs that man X, man Y and CASACIR feel rate-payers have to pay for, was not commenced until well into 2010 and was still going on in mid 2011 (and is on-going), in spite of CASACIR having caused the damage to it by its heavy and frequent usage, and costing the rate-payers a ~ $43,700-00 (and that is just for some of the works)!In addition, man X, man Y and CASACIR told Peter that they would only contribute $5,000-00 towards the first year’s road maintenance! – and Peter is “satisfied” with that!One has to ask why council would force rate-payers to pay for road maintenance that permit conditions dictate has to be paid for by man X, man Y and CASACIR!!!!But, as said, this all met Peter’s “satisfaction” criteria.
Operating hours
In addition to my comments in relation to conditions on this topic, In spite of the fact that man X, man Y and CASACIR’s workers worked on a public holiday when they (Peter and man X, man Y and CASACIR) all knew that it was a breach of conditions, but Peter did nothing about it – one deduces from this that such a breach met Peter’s “satisfaction” criteria.Further, Peter was aware from their work plan, planning report and condition 6 that CASACIR intended to remove product during “evening” hours (Saturday afternoons from 1pm to 6pm) but did not require noise predictions for that time frame and Peter did not require that they meet the designated legal 37dB(A) limit, and also ignored the additional impacts on neighbours – but all this apparently met Peter’s “satisfaction” criteria.
Further council and other permits
Peter was fully aware that there was a requirement for further council permits and applications, but did not require them. The failure of man X, man Y and CASACIR to apply for the permits all met Peter’s “satisfaction” criteria.Peter himself provided misleading information to the tribunal by saying that man X, man Y and CASACIR had, before the quarry opened, “sought approval for secondary consents under the Permit and other required approvals” – however, the only other consent they had applied for was the work authority – there had been no applications for the number of works on waterway permits, take and use licences, septic permits, etc – not before the permit, before starting the quarry, or any time before performing a number of unlawful and unauthorised works, activities and operations – however, the unlawful and unauthorised works, activities and operations met Peter’s satisfaction so much that he, as said, personally grossly lied and misled people about it.
Endorsement of the permit.
Peter could possibly say that it was the tribunal decision that he endorsed, but the tribunal decision was based on Peter’srecommendations and council’s determinations (which were also based on Peter’srecommendation).Peter, in endorsing the permit endorsed, amongst other documents: * the monitoring plan that contains significantly inaccurate information (yet Peter failed to require a new and accurate version); * the planning report which Peter acknowledged was erroneous; * the work plan which Peter acknowledged was lacking in information – however, all this clearly met Peter’s “satisfaction” criteria.
Council’s ground of appeal in relation to our tribunal application.
Peter stated that our application to get man X, man Y and CASACIR to comply with legislation and their conditions was vexatious when he knew that he and council had been party to forcing us into fighting for our rights because neither he nor council would do so. Peter knew that material I was providing was accurate and yet did nothing to support me but actively supported man X, man Y and CASACIR and their blatant and repeated concealments of facts and their inaccurate and fraudulent information.
Backing man X, man Y and CASACIR
From where I sat, Peter was more than prepared to agree with pretty much anything that man X, man Y and CASACIR said, especially at community meetings, even when he knew that what man X said, or some of what was said on man X, man Y and CASACIR’s behalf, was absolutely, knowingly, blatantly and deliberately, untrue – one does have to ask why he was so willing to do so. This included at the very last community meeting I attended where I was not allowed to ask questions and was not allowed to have anyone ask questions on my behalf – this was entirely against the permit condition, yet Peter, who was in charge of the permit conditions and who was in that meeting, said and did nothing (as was sadly typical). I contend that, in my opinion, Peter was just a puppet for man X, man Y and CASACIR. Why was he so willing to be such a puppet – who knows – was it because he was so grossly incompetent that he did not know what he was actually supposed to do and relied on man X, man Y and CASACIR to tell him what to do, or there was some other unknown reason?
Peter’s gross lack of good faith and his inadequacy explained?
Peter sent Bob Duncan an email stating that:
Anne has brought me up-to-date re your inspection and advised you found some planning issues for us. I have been meaning to find some time to get up there and go through the permit conditions again. If you are heading up there and wouldn’t mind company I would appreciate the opportunity to go up with you and take advantage of your quarry wisdom. Can you please advise any issues you found etc.
(1) Peter makes it clear that he can’t be bothered to make the time to go and check for compliance himself; (2) he indicates that he had no real idea what to look for and relies on Bob’s “quarry wisdom” to tell him what breaches there are in relation to council permit conditions! The breaches have nothing to do with any “quarry wisdom” – it is easy enough to look at the permit and see if, condition-by-condition, they are being complied with (self-evidentiary); (3) if he was relying on the “quarry wisdom” of any DPI person (be it Bob or Anne, or any of the others) who were not demanding compliance themselves, of what value would that have been?
Peter’s testimony at court on behalf of man X and man Y
Peter testified under oath as follows:
In relation to his knowledge of man X and man Y:
Peter: [T]hey have both been applicants in relation to matters I’ve dealt with … [in my capacity as manager of statutory planning][46].
In relation to what was said about him:
Peter: I recall there was derogatory comments there … about myself[47]
but it did not change his conduct.
In relation to compliance issues:
Peter: I’m concerned to see that it operates in a proper manner but if issues – there had been a few issues along the way but they have generally been of a minor nature and that’s probably about it. I’ve always found them reasonably good to deal with it[48].
Me: Did you go out to the [quarry] site before the hearing?
Peter: I can’t recall. I’ve been out to the site a number of times, I can’t recall exactly when I’ve been out and when I haven’t been out.
Me: At the hearing were you asked to provide a list of what you considered to be breaches or not breaches?
Peter: Having to try and recall, I seem to remember something along that sort of nature but list, I can’t remember if there was paper list or just asked what was outstanding.
Me: Can you remember what you said was outstanding, if you said anything?
Peter: I remember there were some minor matters, the landscaping wasn’t exactly in accordance with the planning permit. I’m not sure if I said at the time but the septic tank hadn’t been installed, they were still using a holding tank. I’m not sure if there had been anything else[49].
Peter: The ideal would be that it’s planted out in a non-regimented fashion, that’s what the condition says, and it was done in a regimented fashion and what I suggested was a means of getting around that in the sense of making it unregimented from what had already been planted, basically. My suggestion was to let the attritions, the plants that died not be replaced and see what the effect of that was over time, whether that broke up the visual effect[50].
In relation to council’s part in the enforcement hearing:
Peter: The council doesn’t have a choice, it has to be part of it. I wouldn’t have made a decision as to whether or not I wanted to be part of it, I would have had to have been a part of it. … No, we didn’t want to specifically take action against Casacir through it, no[51].
Summary of Peter’s conduct
Peter repeatedly failed (and thereby refused) to answer correspondence and answer questions – probably because he had no adequate answer. This failure (refusal) was in spite of the council undertaking that correspondence will be answered with 7 days – but this failure met Peter’s “satisfaction” criteria.
One thing that is very interesting is the fact that Peter certainly did not want to come to VCAT to fight on our behalf, and certainly did not come to VCAT to fight council’s own case, however, he allowed man X, man Y and CASACIR to fight council’s case for money – and there is no conflict in that? It is no wonder Peter did not admit to the breaches that he had ignored.
[4] Certainly there was no evidence of any enforcement action prior to February 2014 when we were forced to sell our property, which included being forced to sell because of Peter’s gross and continued inaction in enforcing the law.
[5] T318:31–T319:27, T320:8-23
[9] On behalf of himself, man Y and CASACIR
[10] In every one of the first 5 iterations of man X, man Y and CASACIR’s statements of claim, each prepared, filed, and served by Smith, and settled by Southall
[11] Peter’s report to council dated 11 June 2008, page 13
[15] Email from Peter to me dated 13 July 2017
[16] Peter’s report to council dated 11 June 2008, page 6
[22] E.g. the Stabil-Lime Group, Quality Roads Pty Ltd, Quality Roads Construction Pty Ltd, Quality Roads Sealing
Quality Roads Asphalt Paving, QR Construction Gippsland Pty Ltd, Stabilco, Stabilime, SLD Hire, and Botrans
[23] Replaced on 1 January 2010 by the Mineral Resource (Sustainable Development) Act
[24] Peter’s report to council dated 11 June 2008, page 16
[25] The State Environmental Planning Policy
[26] Peter’s report to council dated 11 June 2008, page 7 – yet he deliberately and knowingly allowed the quarry to be 140m from our house in direct contravention of the recommended distance of 500m (i.e. he allowed it to be 28% of the distance away from the closest impacts (although there were actually closer impacts than that).
[27] Peter’s report to council dated 11 June 2008, page 15 – yet he deliberately and knowingly allowed significant parts of the buffers to be on land owned and controlled by others, in blatant breach of the planning scheme.
[28] Peter’s report to council dated 11 June 2008, page 21
[29] Peter’s report to council dated 11 June 2008, page 22
[30] Peter’s report to council dated 11 June 2008, page 16
[31] Knowingly, given that Peter’s role was as manager of statutory planning
[32] Peter’s report to council dated 11 June 2008, page 6
[33] Why would man X, man Y or CASACIR even bother to apply for a licence or permit when they had performed illegal works on Kookaburra Creek before and were not disciplined for it in any way.
[34] Peter’s report to council dated 11 June 2008, page 6
[35] Peter’s report to council dated 11 June 2008, page 6
[36] Peter’s report to council dated 11 June 2008, page 3
[37] Peter’s report to council dated 11 June 2008, page 6.
[38] 10 months after the enforcement hearingthat myself and my related parties were forced to take because none of Peter, Anne or Bob would take action to enforce conditions
[39] Russell Byard, the main officiating member
[40] Sworn on behalf of CASACIR and man Y, and which were created by Smith of KSA, settled by Peake, and which were also acknowledged as having been approved by man Y and Kraan
[41] The few conditions that are not listed were met to at least a considerable degree.
[42] This “wetland” was undertaken at VCAT to be built (and the members acknowledged this in their decision at 101: “The applicant proposes that this second dam should be developed as a wetlands area with the planting of appropriate species”). However, it was only undertaken to be built in order to get past the fact that I had revealed the state of the filthy dam that man X, man Y and CASACIR intended to pour their quarry drainage and wastewater through and into the remains of Kookaburra Creek (in breach of their undertakings to retain and reuse all such drainage and wastewater on site).
[43] The work authority demanded that: 19.1: “The Work Authority holder must ensure that noise emissions are minimised as far as is practicable and comply with the requirements of the approved Work Plan.” and 19.2: “The Work Authority holder must avoid causing unacceptable noise”.
[44] With a thick shroud which entirely enclosed the length and all sides of the drill
[45] But instead, had a very thin, poor quality substitute that did not cover the entire drill but clipped onto the front of the drill and did not cover the back, and it did not cover the entire length of the drill. This breach of the permit condition and a grossly inadequate attempt at a cover was, however, entirely satisfactory to man X, man Y, CASACIR and Peter.