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.
Trevor was, and possibly still is, the Administration Manager for Gippsland. Trevor’s conduct was a part of the obstruction of justice and injustice perpetrated against us. Some of the details follow.
On 18 September 2006, I sent an email to SRW business support requests, not knowing a specific person to send it to in the beginning [emphasis in original]:
There is a proposed quarry for the Neerim North area. As detailed below, we are extremely upset at the thought and prospect of the proposed quarry opening next door (above us – contour wise).
One of the main water sources on our property is in direct line of where they propose to be quarrying, thereby cutting it off thus affecting the ecosystem, the quality and amount of water flowing through the 30+ acres of native revegetation that we have fenced off. We also depend on a portion of this water for reticulation for our cattle, yet we could end up with a property with no water for our stock. We cannot put in dams as our land is too steep and the soil is too open. Another spring is downhill from the proposed quarry site, and we are concerned that its underground water supply/aquifer may also be destroyed. This spring-fed creek is clearly shown on maps for the area (contour maps, and the land titles’ “land.vic.gov.au” maps, for example). Further, the couple of other very minor springs that originate on our place may also be affected.
Seven years ago CSR closed the bluestone/basalt quarry at Neerim North. A local farmer, Gordon Lockett, arranged to purchase the land (which had been rehabilitated), from them. Over a period of three years, a number of people (including us) wanted to buy land that adjoined the ex-quarry land. Gordon assured all such people, ourselves included, that he would never sell the ex-quarry land as he required it for his farming enterprise, and had, in fact, been leasing it from CSR since its rehabilitation. He also assured all of us that the land would never be quarried again. The sale from CSR to Gordon and Margaret Lockett went through in November 2004.
Imagine our surprise when rumours started to get around in May 2005 that Gordon was in the process of selling that land and that there were moves afoot have the quarry re-opened. A number of the neighbours asked both he and Margaret if this was so, and were told “no” and “absolutely not”.
I started to ask around and send emails, letters and faxes to anyone that I thought might be the other party – in spite of Gordon and Margaret’s protestations of innocence. I received a reply from [man Y], General Manager of the Stabilime Group, taking me to task for broadcasting his and [man X]’s intention to purchase the land and re-open the quarry ([man X] is the General Manager of Casacir Pty Ltd, the owner and operator of a number of other quarries). The sale of land from Gordon and Margaret Lockett to [man X and man Y] went through in February 2006.
Upon pressure from me, [man X] came and had a meeting with the direct neighbours (June 2005) and told us that he and [man Y] had been in negotiations for over a year with Gordon (before the time that Gordon had actually bought the land from CSR! – and we know for a fact that he had approached others to have them re-open the quarry!). [Man X] said that there would be other meetings and that they would be consulting with us and keeping us informed. We made it quite clear that we did not want a quarry in the area and that none of would have bought here if we had known that the quarry could be re-opened.
I have sent many emails to both Department of Primary Industries and Baw Baw Shire Council, but neither of them have been very helpful and certainly neither of them have been proactive in advising me of what is happening in the process, despite repeatedly being asked to do so. The Council have also shown that they do not enforce conditions, as the Mt Speed quarry (owned by the same people) was not to open until the road into it was sealed and it has been open over two and a half years and the road still isn’t sealed! – so we cannot expect any support from Council for upholding any conditions.
It has been quoted to us that there will only be “reasonable” noise and “reasonable” dust and “reasonable” traffic (etc). We bought here with what we consider “reasonable” dust, noise and traffic – ordinary amounts of dust, since we live on a dirt road, and we can hear the birds in the silence, a few milk trucks and the garbage trucks – anymore than what we bought here with is above reasonable. Smokers used to have all the rights and now their rights are not able to infringe on the rights of others – why should this be any different?
[Man X and man Y] had, a number of times (over the past fifteen months), said that they would meet with us “in a couple of weeks” – which had not happened until recently (while my husband and I were away in Western Australia – and have only just got back). They have also failed repeatedly to respond to communications, and been of very little help in the few times they have responded. At that meeting (29th August) they apparently told the attendees that they will be applying to have the quarry run from 7am to 6pm weekdays and 7am to 1pm Saturdays. They take no consideration of the impact of neighbours (they have said that they will plant some trees and build a 3m “barrier” – big deal). I have spoken to a person who was local at the time of CSR running the quarry, and she has said that the noise and dust were horrific.
We have beautiful peace and quiet here and do not want the noise of trucks coming and going and being loaded, drilling, loading, crushing, blasting etc., nor do we want the dust, the traffic and the serious risk of water pollution from the quarrying works and the proposed site of the settlement ponds. We are running our property on a Environmental Management System, and the possible impact of this quarry goes against that. Why should we be subjected to dust, noise, loss of property value (estimated to be about 20%), possible water contamination and almost certain loss of water quantity and quality (to name just a few issues).
I have no time for people who buy close to a going concern and then complain about it. All of us bought because the quarry was closed and were told that it would never open again. None of the neighbours want the quarry and should not have to have it. To reiterate – none of us want this quarry to re-open and none of us would have bought here if we had known or even suspected, that the quarry could be re-opened. Any such re-opening will be rigorously contested.
What rights do we have to stop this, perhaps on the grounds of our water supply and “rights”, please? Or can Gippsland Water object to (possibly polluted) water going from the quarry site to the already degraded Latrobe river system.
If you could assist us in this, we would be very grateful.
Instead of Trevor dealing with it himself, he passed it on to Andrew Radojkovic of DPI – and it is easy to see from the DPI pages what happened as far as DPI was concerned.
I received a letter from the then minister for water, Tim Holding, dated 23 June 2008. This letter stated, inter alia, that:
I am pleased to advise that, in recognition that the water resources of the Latrobe River are fully allocated, the Government has now capped both surface and groundwater in the catchment, which will protect the environment and existing water users from further water extraction.
This meant that man X, man Y and CASACIR would not be able to obtain a new licence for the works they intended to do.
On 13 July 2009, I sent Trevor a letter:
We refer to the attached extractive industry planning permit (PLA0010/07) issued by Baw Baw Shire Council, and to the fact that the proposed Work Authority Approval is now being considered by the Department of Primary Industries.
As you would be aware:
– the proposed extractive industry would interfere with the waterway referred to by us as “Kookaburra Creek”, which flows from the proposed quarry site and into and through our property at 140 Pearce Road;
– under Section 51 of the Water Act 1989 there is a requirement for a “take and use” licence;
– SRW has its own stated obligations for community consultation in relation to licences;
– under the Water Act 1989, it is an offence:
o under Section 63 to take and use water from a waterway unless authorised to do so;
o under Section 75, to obstruct or interfere with, construct any works on, or obstruct, erode, or other wise damage the surrounds of, a waterway;
– under Condition 53 of the permit, a hydrogeological report containing substantiated factual information is required.
– under Condition 54 of the permit, prior to the commencement of works, the permit holder must, to the satisfaction of Southern Rural Water, undertake specified investigations, in relation to groundwater and surface water, and comply with any recommendations of Southern Rural Water;
– under Conditions 57 of the permit, the permit holder must comply with the requirements of the Water Act 1989, to the satisfaction of Southern Rural Water.
As far as we can see:
– there is no indication in the proposed Work Plan that has already been endorsed by the Baw Baw Shire Council, and has now been referred to the Department of Primary Industries, that any attention has been paid to any of the above requirements, either by Southern Rural Water, or the Department of Primary Industries;
– the Department of Primary Industries is likely to ignore this fact, and to approve the proposed Work Authority, not withstanding that Stage 1 of the proposal clearly involves breaches of the above requirements.
Given the above circumstances, it is our respectful opinion that as a result of such breaches, the property at 140 Pearce Road will be seriously and detrimentally affected.
In the above circumstances, unless you indicate on behalf of Southern Rural Water what steps if any have been taken with regard to the securing of compliance with the above requirements, including community consultation, we shall be forced to conclude that no such steps have been taken, and that the Department of Primary Industries will approve the Work Authority regardless of that fact.
If we do not hear from you within say the next seven days, it is our intention to issue proceedings to redress the situation.
On 16 July 2009 I sent an email to Terry Flynn, who in turn forwarded it on to Trevor for the answer:
Would you be so kind as to confirm some things for me please (hearing second hand can leave a lot to be desired sometimes). We are landowners nearby and have an interest in the progress.
The following is my understanding of your conversation with [a neighbour]:
* because the relevant condition is a planning permit condition it will be handled by SRW directly, not through DPI;
* Casacir hasn’t provided their “brief hydrogeological” assessment/report to you yet;
* Casacir may have plenty of time to do it, because it doesn’t have to be done until just prior to Stage 2;
* Casacir will have to provide it before they can be issued with a licence to intercept any aquifer;
* that you can see no reason why people cannot be told information about the assessment/report when it happens.
Is my understanding of your conversation with [our neighbour]correct please? If not, would you please correct any misunderstandings?
In addition, there is a requirement for water monitoring bores, could you please provide me with the following information:
* how many you are requiring;
* at what stage/s they are required;
* where they need to be;
* how deep they must go;
* how long they have to be installed before the works/use of the relevant stage/s;
* if a licence/permit for them has been applied for yet.
Could you please also advise if Casacir have applied for a “take and use” licence, or any other licence yet? What will the community consultation process be before any licence is approved?
Thank you in anticipation.
On 2 August 2009 I asked Trevor what his response was given that my email seemed to have fallen into a big black hole. On 11 August 2009 he finally answered:
In response to your questions I provide the following:
* I cannot comment on the conversation Terry had with [your neighbour] as I was not present and I can only assume Terry advised you accordingly. Terry is on leave for this week and I therefore cannot follow up with him. I do however provide the following comment-
The first point is correct we will not be going through DPI. We now have the hydro report it has been reviewed found acceptable and Council has been advised.
* There is a requirement for 3 monitoring bores and they are already installed 1 on the Northern boundary and 1 each on the eastern and western boundaries.
* They range from 12 to 15 metres into solid basalt.
* There is no time limit before works commence but they must report annually on the monitoring results to the responsible Authority plus SRW.
* No they have not applied for a licence as yet and may not need one if they don’t use water in a commercial manner- if they start to use the water for washing product etc they will need a licence.
* If a licence was needed I think we would at least require neighbour notification and referral to the NNWCPA for comment.
Hope this answers your questions
Man X, man Y and CASACIR were using the water from dust reducing (or that is what they claimed, and claimed to have been doing so since the start (on at least 4 August of that year), and it was known since May 2006 that they would be using the water for commercial uses) and yet there was no licence required.
Having had to fight to obtain a copy of the hydrogeological report dated 13 August 2009, I had to fight to obtain a copy of an earlier one:
I note that, in a letter you said you had a hydrogeological assessment for the Neerim North quarry dated July 2009. Please urgently email me a copy of that document.
On 18 August I asked Trevor when man X, man Y and CASACIR has applied for the applications for the monitoring bores:
[P]lease provide me with the date of the applications for the water monitoring bores and the date of the hydrogeology report
Further, I had to remind Trevor that the hydrogeological report was public information – and I had to do so because he was refusing to release it:
With the hydrogeology report, it was a requirement of the conditions that it be supplied and I come back to that fact – it should have become the property of SRW at the time of submission an therefore not subject to FOI. However, because SR do not want to co-operate, please urgently provide me with the name and email address of the FOI person.
In addition, on 26 August 2009, Elissa McNamara (the SRW hydrogologist who had evaluated the hydrogeological report provided by Hyder on behalf of man X, man Y and CASACIR), supplied her comments on the hydrogeological report:
I have reviewed the hydrogeological report provided by Hyder consulting and make the following comments:
* There are three identified springs – the largest one is in the middle of the northern site boundary. There are two smaller springs to the southwest and northeast of the quarry site;
* All spring flows and water quality will be monitored during Stage 1 of the quarry construction/operation. The largest spring has also had flows monitored between Dec 07 and Oct 08…average flow during this period was just over 3ML/year.
* The largest spring will be directly impacted and excavated during Stage 2 of quarry works….the other two springs may be indirectly impacted and have reduced flows but these impacts cannot be quantified at this stage….will have additional monitoring data by the time the largest spring is excavated
* The springs are fed by a local, unconfined perched aquifer in the weathered basalt. The regional basalt aquifer is confined and it is believed that the regional groundwater level is BELOW the level of the proposed final floor of the quarry. It is therefore unlikely that regional groundwater flows will be intercepted during the life of the quarry.
* The total volume of flow likely to be intercepted from the largest spring is expected to be between 3ML and 20ML/year, depending mainly on rainfall.
* It is understood that spring flows will be intercepted, stored in the onsite dam and then released into the waterway at the downstream property boundary. No S51 Take and Use licence for groundwater is required in this case. However, if intercepted water were to be used for dust suppression, product washing etc, a licence would be required.
In summary:
The hydrogeological report entitled Casacir Pty Ltd, Neerim North Basalt Quarry, Hydrogeological Assessment, dated July 2009 by Hyder Consulting, has been reviewed and is to address SRW’s requirements under the Baw Baw Shire Planning Permit and to be of an appropriate technical standard.
Elissa clearly notes that the use or water for dust suppression required a licence. More on Elissa’s comments is on the SRW page – but all that met Elissa and SRW’s satisfaction.
On 26 August 2009 I received a further email from Trevor, passing answers to some of the questions I had put to Elissa.
I had asked:
Could you please describe a water monitoring bore for me (how wide is it, what construction, how high above ground, does it have to be fenced from cattle, …)
Elissa responded:
Groundwater monitoring bores (both in general and at this site in particular) are constructed in accordance with the Resource Management Council of Australia & New Zealand (ARMCANZ) guideline document Minimum Requirements for Bore Construction. However, the exact construction technique will depend on the site hydrogeology and project requirements.
I had asked:
If someone was doing long term mining or extractive industry, would they have to have done exploratory bores to the total expected depth of material removal to see what water is likely to be interfered with?
Elissa responded:
Typically, before any mining application is considered, a great deal of exploratory bore drilling is conducted. In the case of Casacir, they have completed several investigation phases back to 2006 and found that there is a shallow, perched aquifer in the shallow basalt but that the next basalt aquifer down (the regional aquifer) is below the proposed base level of the quarry.
I found that to be an entirely extraordinary response given that (1) she said that usually “before any mining application is considered, a great deal of exploratory bore drilling is conducted”. She then said that they had done some drilling, but they had not done “a great deal of exploratory bore drilling” – in fact, man X, man Y and CASACIR had not done any drilling to the depth at which they intend to eventually excavate, so watertable locations were unknown. Further, the drilling performed in 2006 revealed (according to their work plan, that “(2.5) Recent resource exploration drill holes indicate that the permanent water table is at about 395m AHD, and identified localised, perched water tables in unconfined basalt aquifer at about 444m AHD and 453 AHD. When the higher level, perched water tables are intersected by drainage gullies the water appears as a spring”. However, there is one spring at 405m AHD, and 2 springs at 444m AHD, showing that the associated water tables start higher and end lower. The regional groundwater which they state is “about 395m AHD” (veryconvenient that it is supposed to be just below the bottom of the pit[1], and is unlikely to be ‘flat” and therefore is more likely to follow the contours of the land[2]– there are at least two issues here: (1) man X, man Y and CASACIR state in their work plan that they would be digging sumps into the base of the pit to capture the water entering the pit – therefore it runs the risk that any such sump could penetrate the groundwater, and (2) they state that it was “about” 395m AHD and therefore is likely to not be at that level and could well be higher[3]. Then there is the aquifer at 453m AHD, that will be intercepted as well – and all that met Elissa and SRW’s satisfaction.
I had asked:
And would they then have to put water monitoring bores to the depths of each of the various aquifers?
Trevor responded to this one:
The depths of the bores etc are in the hydrogeological report (my comment)
In other words, she avoided answering the question, as did Trevor, because the bores were not drilled anywhere near the depth of the extraction, thereby concealing the true facts – and that met Elissa and SRW’s satisfaction.
On 2 October 2009 I asked Trevor [emphasis in original]:
Trevor – I realise that SRW really doesn’t care (this has been made perfectly clear throughout the whole process), but I thought that you might be interested to note that the quarry is planning to blast in the very near future in an area where close by and at that same or similar elevation they have identified groundwater – meaning that they would be, almost certainly, blasting into the aquifer.
Added to that is the fact that SRW have, to put it plainly, “put the fox in charge of the hen-house” in that you have left it to Casacir to see if they need a take and use licence or not – as if they are going to apply for something they are not made to! They have provided information again, and again (including in their hydrogeology assessment) that clearly states that “The development will result in a cone of depression in the perched aquifer, for all stages of the development” and that they would be using it for “dust suppression of plant and roads, wetting down of loads, and washing stone products” – how much clearer do they have to be?? They appear to think they are a law unto themselves and can do what they like and the authorities will do nothing, and, based on past performance, they are absolutely right!
But, it’s all very, very odd, I had thought that SRW was the authority and not Casacir – I must have missed something because it is very clear who runs the show!
Question is, who, if anyone, has the intestinal fortitude to do something about it?? And is SRW really willing to risk litigation for failure to fulfill responsibilities?
On 4 October 2009 Trevor responded:
The hydro report provided by Hyder on behalf of Casacir considered the overall impact of the removal of the local perched aquifer material and impact on spring flows. The method of removal of this material has not been considered as it is not relevant. The safety and adequacy of the proposed blasting/excavation method is outside of SRW’s jurisdiction and would fall under the works approval authority.
Casacir have been clearly informed that if they wish to use water in a commercial sense for dust suppression or the like they need a licence.
At that stage, man X, man Y and CASACIR had already, according to them, been using the water for dust suppression and the like, yet they had not applied for, or obtained, a licence – and neither Trevor nor anyone else at SRW had had the intestinal fortitude to take them on and make them apply for and wait for a licence – and that certainly met Trevor and SRW’s satisfaction.
On 24 October 2009 I sent the following to Trevor:
SRW has responsibilities under the Water Act 1989 – please immediately provide the details of how SRW intends to ensure that the Water Act 1989 is upheld, that our rights under the Water Act 1989 are upheld, and that our creek (flowing from the springs) is, therefore, not taken away from us at any stage for any reason.
Not surprisingly, I did not receive a reply because Trevor was not going to uphold the Water Act without being forced to. Having received a response from Trevor, I then sent him the following on 2 November 2009:
I still await your response please Trevor.
I also await the response to my email of 30th August 2009 which asked the questions: “I assume that, in accordance with Council condition 57 which states: “The permit holder must comply with the requirements of the Water Act 1989, to the satisfaction of Southern Rural Water” means that nothing less than full compliance with the Water Act 1989 is satisfactory – if this is not so, please immediately state where SRW is prepared for them to not comply.”
Kindly provide your responses urgently.
Trevor replied on 6 November 2009:
I believe I have answered these questions earlier on.
As you state the “permit holder must comply … to the satisfaction of SRW” and yes we do expect compliance with the Water Act 1989.
There was a hydrogeological report provided which was acceptable to SRW and the WGCMA look after the health of waterways and I recollect they had some requirements they where dealing with the proponent on.
As we have seen, man X, man Y and CASACIR’s significant lack of compliance with the Water Act was governed by Trevor’s own lack insistence on compliance.
In my email to Trevor dated 19 November 2009, I stated:
I note that VCAT have forwarded you a copy of our application under … the Water Act 1989. It is unfortunate that we have been put in the position of having to lodge such an application by the authorities not ensuring that the Water Act is complied with nor being willing to protect our prior rights to water. We have, for a long time now, endeavoured to have the authorities ensure compliance but have met with both resistance and a lack of assurance and information as to if and how the authorities would ensure our prior rights.
It was mandatory that man X, man Y and CASACIR apply for a take and use licence prior to performing any works that would require the taking and use of water, however, they did not do this and Trevor covered for them in many ways, as seen in the details and correspondence below:
SRW ignored the fact that man X, man Y and CASACIR had been and were taking and using surface water for their commercial operations (which man X, man Y, CASACIR and Trevor all knew required a take and use licence), without such a licence (for 6 months before Trevor even required an application for a “transfer of licence”, and for a total of 9 months without a licence at all, and for 16 months without a meter. Trevor and SRW knew: (1) prior to the first work plan being endorsed by DPI in 2006, (2) when SRW ignored the first referral in 2007, (3) prior to the second work plan being endorsed by DPI in 2007, (4) when SRW ignored the second referral in 2008, (5) prior to the third work plan being endorsed by council and being the focus of the work authority granted by DPI in 2009, and (6) prior to the quarry commencing on 4 August 2009, that such a licence would be, and was, urgently required. There was absolutely no excuse because the permit or licence was required under the Water Act 1989, but of course, we have seen how Trevor and SRW didn’t require actual compliance with the Act[4].
On 27 November 2009 I sent Trevor the following email:
[C]ould you please tell me if Casacir (or a representative) has applied for a take and use licence yet please? If so when, and where is it up to, and if not, when do you expect an application?
On 16 December 2009 Trevor responded:
No Casacir have not applied for a licence
On 16 December 2009 I responded, asking to be kept apprised of the situation:
[I]f you could keep me appraised of the situation I would appreciate it
On 8 February 2010 Trevor notified me that:
I … advise that we have just received an application from the previous owner of the Quarry to transfer an existing water licence from a dam on the Quarry property into the current owners name.
Please note this is not an application for a “fresh” allocation of water but an application to transfer an existing licence on property ownership transfer.
This application on property transfer will be assessed in the normal way and determined.
On 9 February 2010, I sent an email to Trevor [emphasis in original]:
Please URGENTLY provide a copy of the application submitted to you in relation to the Neerim North quarry water usage, licence, dam etc (emailed preferably but otherwise fax: [xxxx xxxx]) of the application for transfer of the current licence and explain the reason you were happy to have the quarry take and use the water without the required licence – since the SRW approved hydrogeological assessment stated that the dam is fed by groundwater.
On 15 February 2010, I sent an email to Janet Granger-Wilcox about the SRW website. Janet had previously kindly sent me some links and answered some questions, but others questions remained:
Thanks for your reply Janet, the links were very helpful. Perhaps the website could have these more clearly identified.
Your website does not provide information regarding the processes of community consultation for the obtaining, transferring or renewing a take and use licence as far as I can see. I have some documentation from SRW that states that there is a definite community consultation process for such licences, but I was looking for finer detail on your site. There is an application for a transfer of a licence at SRW of undetermined status that will seriously affect us and we want to be pointed to the location on your site identifying the processes and at what point we will be contacted for our input. prior to the licence being transferred (the licence has not been used for many years)
Janet responded:
We have different consultation processes for different applications, which is why we don’t have any finer detail on the website. You’re best to talk to whoever in SRW will make a determination on the application.
And, once I had identified that it was in West Gippsland, Janet referred me to Trevor for specifics.
On 15 February 2010, I sent Trevor the following email:
[P]lease provide the community consultation you intend to have in regard to the application to transfer the licence – prior to it being either approved or refused. I have SRW documentation that states that SRW takes the issue of community consultation seriously and this particular licence transfer will be of significant “interest” to a number of people who are or would be affected parties
After Trevor finally realised that I was not going to give up and that he had better take action to get a permit transferred to man X, man Y and/or CASACIR, he responded by sending me the following:
The transfer application to which you refer will be processed in accordance with SRW’s usual policies and processes. As the transfer is of an existing licence to a new landowner, and is remaining with the land, no formal community consultation process will be undertaken.
However, the Authority must take into account the relevant sections of the Water Act, and in particular consider the matters set out in sections 53 and 40(1)(b)-(m).
If you have any information which you would like to submit to the Authority please feel free to do so.
On 19 February 2010 I sent a letter of objection to SRW, stating:
Please find attached objection.
Having declined to provide me with the necessary information regarding the type of licence, the purpose stated in the licence, the party currently owning the licence or any information regarding the licence, licencee or any other details, you have made this objection more difficult.
Please advise me of the status and immediately it changes. Should SRW be remiss and approve the transfer, it will necessitate us lodging a formal objection
The enclosed objection detailed the following:
1. I, …, on behalf of the owner of 140 Pearce Road Neerim North (Shapher Pty Ltd – of which I am a director), the Lessee of that property (Country Endeavours Pty Ltd – of which I am the company secretary), and my husband and myself, make this submission by way of objection.
2. On 9 February 2010, I was advised by Mr Trevor McDevitt of Southern Rural Water (SRW) that:
[W]e have just received an application from the previous owner of the Quarry to transfer an existing water licence from a dam on the Quarry property into the current owners name. Please note this is not an application for a “fresh” allocation of water but an application to transfer an existing licence on property ownership transfer. This application on property transfer will be assessed in the normal way and determined.
3. On 15 February 2010, in response to me asking the process for community consultation, I received a further email from Mr McDevitt:
The transfer application to which you refer will be processed in accordance with SRW’s usual policies and processes. As the transfer is of an existing licence to a new landowner, and is remaining with the land, no formal community consultation process will be undertaken. However, the Authority must take into account the relevant sections of the Water Act, and in particular consider the matters set out in sections 53 and 40(1)(b)-(m). If you have any information which you would like to submit to the Authority please feel free to do so.
4. Mr McDevitt has declined to provide the information regarding the type of licence, the purpose stated in the licence, the party currently owning the licence or any information regarding the licence, licencee or any other details, all of which makes this objection more difficult.
5. I, on behalf of the aforesaid parties (in point 1) strongly and strenuously object to the transfer of the licence and any proposed (but concealed) renewal/extension of the licence. Some details and reasons are contained below.
6. The Water Act 1989 (the Act) section 62
(5) In considering an application, the Minister must have regard to the matters mentioned in section 53.
7. Section 53 of the Act has the requirement that
(1) In considering an application under section 51 or 52, the Minister must have regard to the following matters— …(b) the matters mentioned in paragraphs (b) to (m) of section 40(1).
8. Section 40 of the Act has the requirement of certain specific considerations and requirements:
(1) In considering an application under section 36(1), the Minister or Governor in Council (as the case requires) must have regard to the following matters—
(b) the existing and projected availability of water in the area;
(ba) the permissible consumptive volume, if any, for the area;
(c) the existing and projected quality of water in the area;
(d) any adverse effect that the allocation or use of water under the entitlement is likely to have on—
(i) existing authorised uses of water; or
(ii) a waterway or an aquifer; or
(iii)the drainage regime within the meaning of section 12(1); or
(iv)the maintenance of the environmental water reserve in accordance with the environmental water reserve objective;
(e) any water to which the applicant is already entitled;
(f) any volume of water that is allocated for sale under section 222(1)(c);
(g) the need to protect the environment, including the riverine and riparian environment;
(i) the conservation policy of the government;
(j) government policies concerning the preferred allocation or use of water resources;
(ja) whether the proposed source of water is within a heritage river area or natural catchment area within the meaning of the Heritage Rivers Act 1992 and whether there is any restriction on the use of the area under that Act;
(k) if appropriate, the proper management of the waterway and its surrounds or of the aquifer;
(l) the purposes for which the water is to be used;
(m) the needs of other potential applicants.
9. Section 62 goes on to state that
(6) “If an application is made—
(a) the Minister, if he or she is of the opinion that the transfer is likely to have an adverse effect on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective must refuse to approve the transfer; or
(b) in any other case, the Minister may—
(i) refuse to approve the transfer of the licence; or subject to subsection (9), approve the transfer of the licence and may, in
(ii) addition, amend or delete any of the conditions to which the licence is subject or add a new condition, but must not make the licence subject to any condition to which it could not have been made subject under section 56(1) )
[sub-section (9) has been revoked – therefore there is no restriction to the matters that must be considered in section 56(1)].
10. So, we are pulled into section 56, which states:
(1) “A licence issued under section 51 or 52 is subject to—
(a) any conditions that are prescribed or fixed by the Minister relating to—
(i) the protection of a waterway or an aquifer; or
(ii) the purposes for which the water may be used; or
(iii) in the case of a licence issued under section 51, the maximum amounts of water which may be taken in particular periods or circumstances; or
(iv)in the case of a licence issued under section 51, payment for the amount of water used; or
(v) the protection of the environment, including the riverine and riparian environment; or
(va) the maintenance of the environmental water reserve in accordance with the environmental water reserve objective; or
(vi) the conservation policy of the Government; or
(vii) the efficient use of water resources; or
(viii) if appropriate, the proper management of the waterway and its surrounds or of the aquifer; or
(ix) the drainage regime within the meaning of section 12(1); or
(x) the manner in which the licensee is to compensate any person whose existing authorised use of water may be adversely and materially affected by the allocation or use of water under the licence; or
(xi) the protection or control of in-stream uses; or
(xii)in the case of a licence issued under section 51, the installation and use of measuring devices or pumps; and
(xiii) notification of change of ownership of land on which water is taken under a licence issued under section 51(1A); and
(b) in the case of a licence issued under section 51 to take and use mineral water, the payment of a surcharge of 1⋅5 cents per litre for each litre of mineral water taken and used under the licence in a period specified in the licence; and
(c) any other conditions that the Minister thinks fit and specifies in the licence.”
11. In accordance with legislation, to summarise, the following must be taken into consideration:
a. The existing or projected availability of water in the area,
b. The existing and projected quality of water in the area,
c. Any adverse effect that the allocation [or supply] that the allocation or use of water under the [so-called] entitlement on, amongst other things, would cause to the:
i. existing uses of water,
ii. on waterways,
iii. on aquifers,
iv. draining regimes,
d. The protection of watercourses and their surrounds,
e. The protection of aquifers and their surrounds,
f. The maximum amounts of water which may be taken in particular periods or circumstances,
g. The efficient [and equitable] use of water resources,
h. The need to protect the riparian environment,
i. The purposes to which the water would be used,
j. The protection of in-stream uses,
k. The protection of water quality,
l. The protection of stream flows,
m. The protection of regional groundwater levels,
n. The need to protect the environment,
o. The installation and use of measuring devices,
p. The needs of other applicants and potential applicants [others who do or would use the water],
q. The manner in which the licensee is to compensate any person whose existing authorised use of water may be adversely and materially affected by the allocation or use of water under the licence,
12. If the Minister is of the opinion that the transfer is likely to have an adverse effect on the maintenance of the environmental water reserve in accordance with the environmental water reserve objective then he or she must refuse to approve the transfer.
13. I note that Mr McDevitt has failed and continues to fail to state the remaining life of the existing licence and if the transfer includes a proposed renewal/extension.
14. Mr McDevitt’s statement that the proposed transfer is in the name of the owner of the previous quarry – Cemex (it was Readymix at the time of closure, rehabilitation and sale of the previous quarry, which became Rinker, and is now Cemex). If this is so, then:
a. The licence has then not been active for some ten years, therefore they cannot have used the subject licence for a quarry (which is presumably the purpose stated on the licence) since the quarry closed, was fully rehabilitated in excess of ten years ago (the quarry permit was surrendered) and the property was sold to a farming family (the Locektt family) in 2003/2004;
b. Is Cemex aware that the proposed licence transfer is a transfer to Casacir (i.e. a commercial competitor), and where is the proof that they are aware of that and agree?
c. If Cemex are not aware that the proposal is to transfer the licence to Casacir then that approval must be required – otherwise Cemex could be under the impression that Locketts still own the land and may not have otherwise signed the forms – thus invalidating the transfer application.
15. However, since the land was sold to another party (the Locketts) in 2003/2004 (i.e. between the two quarry operators owning it), and Locketts did not at any time own or operate any quarry on the site (or to my knowledge anywhere at all), then, ifthe licence is in the Lockett name (or any associated company name or names):
a. for Mr McDevitt to make the statement that the application to transfer the licence is from the previous owner of the quarry, is for him to have made an erroneous statement and which I can only assume is an attempt to validate the transfer.
16. The current owners of the property to which the proposed transfer applies, are the directors of Casacir and who bought the property in May 2006. This purchase was obviously without the subject licence so for Mr McDevitt to indicate that it is an application on property transfer is not accurate because it would have been done at the time of transfer of land. In addition, if it still is in the name of the previous quarry owner, then there has been a property transfer in between, so this reason or purpose is invalid on either count.
17. Further, there has been no identification:
a. within any documentation produced by Casacir as part of the process to date,
b. within any of the three work plans,
c. within either of the two planning reports,
d. within any of the specialist reports presented to the Tribunal,
e. any of the submissions to the 2008 Tribunal, or
f. within the two versions of the hydrogeological assessment,
of any such license being available for transfer. Nor had Casacir previously attempted to acquire the transfer. Any such application for a transfer, or the availability of such a transfer from an unidentified party has been completely hidden or concealed until now.
18. SRW states that its community consultation process is:
a. “committed to involving the community in licensing decisions”, and
b. “considers the interests of others …”, and
c. “identifies public concern”, and
d. “identifies neighbours’ concerns” and that
e. “if there is local interest we may have an open meeting of all parties”.
Therefore full community consultation is required.
19. If the licence was permitted to be transferred and acted upon then the impact upon our property would be significant.
a. We bought our property because it is, or was (before the quarry), a drought-proof property with water always flowing, if not from the spring heading Kookaburra Creek, then from the spring to the north-west of our property (within the south-west corner of the land owned by Casacir (but outside the “quarry site”).
a. The hydrogeological assessment shows that (clause 6.1):
The development will result in a cone of depression in the perched aquifer, for all stages of the development.
This is the aquifer which feeds the spring at the headwaters of Kookaburra Creek as well as the spring to the north-west of our property (clause 4.4):
A spring was evident in the south-west corner of the property (and outside of the Work Authority area). Water from this spring also flows into the southerly flowing water course
which will be seriously impacted and will result in (clause 6.3):
… a loss of groundwater inflow to … the [spring in the] south-west corner of the property.
c. We are unable to have a dam on our property due to the topography and rely upon the aquifers which feed Kookaburra Creek and the other two springs, one of which has been identified by the hydrogeological assessment as being affected – without plans for compensation or replacement, and the other spring is small and would most likely dry up due to being just below the proposed quarry floor level;
d. To allow the licence to be transferred would be to allow it to be activated, and would then allow Casacir to further impact our property by the premeditated means and with the acknowledged impacts;
e. The breaching of the aquifer feeding Kookaburra Creek and the destruction of the spring at its headwaters is the worse than building a dam on the watercourse in that at least a dam has to have the bypass mechanism so that a certain amount of the natural water has to continue to flow – SRW and Casacir’s intent is that the entire amount of the aquifer flow is collected by the quarry for their use (with the potentialof, in lieu of our spring water, perhaps using some of the wastewater or drainage from the quarry as so-called “replacement flow” at uncertain times in uncertain amounts of dubious quality and with absolutely no guarantee – and which discharge is refused);
f. The quarry will likely result in us not having a viable beef farm and the transfer of the licence will ensure this.
g. SRW, along with Casacir will be liable for the resultant impacts [t]o our property.
20. There is already a significant impact upon our property caused by Casacir and SRW’s ignoring of impacts on us, for example:
a. The 4m “freeboard” required for the dam will cause our property problems, as it did in 2007 when the water was taken and used for potatoes – until the dam was full again there was less flow into our property;
b. The unauthorised [and illegal] works on Kookaburra Creek (particularly by sending water underground) have already caused us, and are causing us, loss of flow of water and SRW has not required an assessment of the impact (the previous flow is now groundwater);
c. SRW have given the assent to the breaching of aquifers, the abstraction of groundwater and the take and use without a licence.
21. SRW has, in the past and present, failed to act with due diligence in a number of ways. SRW:
a. failed to respond to Council’s first referral regarding the quarry permit application;
b. failed to respond to Council’s second referral regarding the quarry application in the allowed timeframe, and only eventually did so after pressure from WGCMA (after we put pressure on WGCMA for them to act with due diligence);
c. failed to take the rights of other existing and/or potential water users into consideration, or to require Casacir to do so;
d. have “left the fox in charge of the hen-house” by leaving the requirement of a take and use licence to Casacir to determine, in the face of the knowledge that one was required prior to any works being performed on site;
e. approved a hydrogeological assessment that was and is seriously deficient;
f. failed to provide the hydrogeological assessment to other parties when one of SRW’s statements was that any person was entitled to view and obtain a copy of any such hydrogeological assessment;
g. failed to advise that an amended version of the hydrogeological assessment was available to the public;
h. failed to require Casacir to adhere to the conditions of the water monitoring bore licence;
i. failed to provide penalties for breaches of the water monitoring bore licence;
j. failed to require Casacir to abide by the Water Act 1989;
k. failed to require full, accurate, consistent and substantiated information;
l. failed to require a take and use licence before work commenced at the new quarry, even while knowing that one was required prior to commencement for the dust suppression, washing of materials, and the like;
m.failed to require a take and use licence for the water removed in an unauthorised amounts and in unauthorised manner from Kookaburra Creek for the amenities block;
n. is now either attempting to justify the transfer of a licence from a farmer to a quarry by concealing the fact by stating that it was from the former quarry owner (i.e. Cemex), or has (presumably) failed to advise the former quarry owner (i.e. Cemex) that the licence transfer would be to another quarry owner not to the farmer;
o. failed to advise all interested parties (e.g. all neighbours and the Neerim District Water Association, which SRW knows has a material interest in any application in the area) that such an application is in process of being considered;
p. has not advised the affected parties of when the licence for the abstraction of groundwater was applied for and/or obtained, nor the amount of groundwater allowed, the frequency allowed, the date of the licence or any details of it;
q. has ignored the mis-statements and concealments of Casacir, such as their declarations that, in order to stop the pollution or contamination of groundwater, all servicing and refuelling would be peformed on a concrete pad with triple interceptors, when they really intended to, and have done, the refuelling and servicing in the excavations and paddocks;
r. has not required Casacir to have the two required take and use licences even though, as SRW was and is fully aware, Casacir has been taking and using both groundwater and surface water in an unauthorised manner and in unauthorised amounts and without penalty, reprimand or consequence.
s. not required Casacir to:
i. provide a “water balance”;
ii. provide a “water audit”;
iii. provide a “water use plan”;
iv. provide full identification of the proposed water use;
v. describe the extent to which the water will be used (daily/annual volumes, rates & area);
vi. identify the entire infrastructure to be used, centre pivot, fixed sprays etc.
22. Due to the impracticalities of the site it would be neigh on impossible to ensure that all water taken and used would or could be metered, especially since Casacir are proposing having an unknown number of sumps, in unknown locations, of unknown depths and unknown sizes which they state would contain groundwater and would be pumped for take and use.
23. It is currently impossible to monitor or meter the amount of groundwater that is currently taken and used from the aquifers, and this ability would not improve.
24. However, on the other hand, SRW has allowed Casacir to:
a. perform works in an unauthorised manner at unauthorised times;
b. take and use water in an unauthorised manner and in unauthorised amounts from both the dam (containing groundwater) and from Kookaburra Creek;
c. attempt to remove our existing rights to water without our permission, consent or authorisation;
d. attempt to, and allow them to, put wastewater, drainage and discharge through our property without our permission, consent or authorisation and without a licence to do so; and
e. shown themselves by such actions to be unfit for a permit or licence
all without consequence from SRW.
25. SRW has ignored the myriad of inaccuracies, inconsistencies and contradictions, vagueness and unsubstantiated claims within the hydrogeological assessment and other Casacir documents.
26. The actions of Casacir to date have caused and are causing adverse impacts upon our water and property and therefore cannot be allowed to obtain the approval of the transfer.
27. If SRW has seen that such a licence is and was necessary then not only is Casacir in breach, but SRW is also in breach of the Water Act 1989 by allowing Casacir to continue to operate without such a licence, and without consequence or penalty. On the other hand, it would appear obvious that SRW has not considered it necessary for Casacir to have a licence since it has allowed it to operate without one to date – thereby making the proposed transfer unnecessary.
28. It is unconscionable of both SRW to allow Casacir to, and Casacir to, take our water, or have the further opportunity to affect our property by the further removal of the natural flow of water from it.
29. Reiterating, I, …, on behalf of the aforesaid parties strongly and strenuously object to the transfer of the licence and any proposed or potential (but if proposed then concealed) renewal/extension of the licence.
Although I had provided a significant amount of information, it was all completely ignored, as were the impacts, and the deceptions of man X, man Y, CASACIR, and deceptions and failures in the Hyder report. Further, In February 2010 (almost 4 years after the farmer sold the land to the directors of CASACIR), Trevor apparently told the farmer who used to own the land that he should transfer his surface water licence to the quarry because man X, man Y and CASACIR needed the licence (as stated, man X, man Y and CASACIR had already been taking and using the water unlawfully and in an unauthorised manner (i.e. illegally) for 6 months at that stage).
Trevor told me that the transfer of water licence was from one quarry owner to another! This is in spite of the fact that he knew that the current licence holder was not a quarry owner or operator. It is my contention that Trevor said this clearly in an attempt to justify the transfer – because he knew that it was from a farmer to the quarry operator. Trevor alsoinferred that the (excessively belated) take and use licence transfer was on the basis of being made under the Transfer of Land Act, due to the sale of the land and the licence being tied to the land. However, as stated, the farmer had sold the land almost 4 years earlier to man X and man Y (the directors of CASACIR) – so the inferred claim of being transferred under the Sale of Land Act was also fraudulent and it was not made even from one property owner to another at the time of sale!
Trevor and SRW ignored the fact that the belated take and use licence did not allow the water to be taken from Kookaburra Creek for toilets, and that water was, according to man X, removed from Kookaburra Creek for that purpose[5]– without any such permit or licence to do so.
Trevor also said that there had been community consultation. I can find no-one other than the farmer who transferred the licence and man X, man Y and CASACIR who was approached or involved, and Iwas only included because I was jumping up and down and demanding facts (which would only be released to me via FOI)! There was no proactive inclusion of the community as far as I can find, so that appears to be yet another attempt to cover up and excuse Trevor and SRW’s failures and to finally enforce man X, man Y and CASACIR to comply with the law. On 15 February 2010 I had to ask about the process for community consultation about the transfer of water rights:
[P]lease supply me with the process of the application to transfer with regard to community consultation. I have a document from SRW saying that for every licence there will be community consultation and that SRW takes its community consultation seriously – so please advise when we will be asked for our submission with regard to the application
On 19 March 2010 I had to send Trevor a request regarding the water licence:
[P]lease advise status of surface water licence application, plus any other application/s regarding the Neerim North quarry / Casacir / [man X] & [man Y] / other related party
On 20 March 2010, Trevor replied and said:
Still under assessment will advise when determined
On 25 March 2010 I sent the following to Trevor:
[P]lease ensure that I am notified immediately a decision on the surface water transfer application is determined as, in the case of erroneously approving the transfer, I will be objecting. I have more than sufficient information to contest any such erroneous decision.
Please also ensure that I am advised immediately of any further applications as they too will be more than adequately contested
I sent an email to Trevor requesting information regarding the take and use licence transfer, and he responded on 8 April 2010 as follows:
I refer to your FOI request to H Johnson of 14 Feb 2010 and note that some information has been provided but the remainder of the items specified have been passed on to me to answer where I can.
I have addressed the items in numerical manner:
1/. Application submitted on 22/1/10
2/ Provided under FOI
3/. There has been no more water requested only the transfer of the existing 32ML licence
4/. Meters are installed on either the suction or delivery lines of the pump in accordance with SRW’s installation specifications
5/. The meter would be installed in a manner to ensure that all licensed water used is recorded. Meters are read twice annually.
6/. The process for objections not sure what this means but decisions can be appealed to VCAT.
7/. Provided under FOI
8/. It appears that the licence has not been active in recent times
9/. Unsure as SRW does not get involved but normally it is done on settlement and is part of the property sale
10/.Answered above in 4 & 5
11/. Nothing exists in this regard
12/. As above
13/.Outlined on the licence
14/ Field Inspection revealed that there is no interruption to water flows from the spring.
15/.Country Endeavours
16/.Provided under FOI
17/.Provided under FOI
Hope this satisfies your queries
Because there had been no determination about the take and use licence, I sent the following to Trevor:
Please urgently advise status of application/s
Trevor replied on 7 May 2010, saying:
Will be determined in the next week
Needless to say, Trevor approved the transfer, and the above was the sole “community consultation”. This meant that man X, man Y and CASACIR could then legally take and use the water from the dam that they had been illegally taking and using for the previous 9 months (they commenced works on or before 4 August 2009 and told both VCAT and the Supreme Court (as absolute unequivocal fact) that they had been using water sprays at all times, and in order to do so they had to get the water from either the dam or Kookaburra Creek’s spring – both of which required a take and use licence that they had not applied for or obtained.
Trevor clearly showed over the time that he was very happy with man X, man Y and CASACIR having taken and used the water illegally:
- he had read man X, man Y and CASACIR’s documentation and knew that they fully and clearly intended to, and needed to, take and use the water from the dam from the beginning; and
- he had read (if not created) the SRW conditions that went into the planning permit.
In fact, I believe that, in breach of his responsibilities under the Water Act 1989 (Vic), he would not have made them have a licence at all but for my dogged persistence and insistence. It was he who sought the transfer and he who sat on it and then finally completed the transfer.
In spite of a number of FOI requests, we have not been able to acquire anything to show that either Trevor or SRW enforced their own conditions and/or took action against man X, man Y and/or CASACIR for those breaches.
But all that clearly met Trevor’s “satisfaction” criteria.
[1] This claim was disputed by John Nolan of Hyder at VCAT in 2008
[2] As exposed by John Nolan as unequivocal fact (unless he misled the members)
[3] Again as exposed by John Nolan
[4] They talk of compliance, but don’t enforce it – sounds good, but is all a smoke screen for allowing man X, man Y and CASACIR to pretty much do what they like unless I manage to goad the authorities into insisting on compliance
[5] Even though it was taken not for stock and domestic use, but was for commercial use