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.
Work authority WA1347 for the Neerim North quarry was granted under the Extractive Industries Development Act 1995(EIDA). The EIDA was subsequently revoked and, on 1 January 2010, was replaced by the now governing Act, the Mineral Resource (Sustainable Development) Act 1990(MRSDA). The MRSDA has the equivalent sections to the EIDA[1], and which state [emphasis mine]: “77I (3) The Minister must not grant an authority under subsection (2) unless he or she is satisfied that the applicant has— … (c) complied with any relevant planning schemeand obtained any necessary planning permit under that planning scheme; and (d) obtained all necessary consents and other authorities required by or under this or any other Act; …. and that the proposed extractive industry will, if carried out in accordance with the extractive industry work authority, comply with any relevant planning scheme.”
Therefore, the planning scheme legislatively must be complied with, and this is confirmed by Russell Byard of the tribunal (from his reasons in relation to the enforcement application) [emphasis mine] “(12) … an enforcement order can … be made where a contravention of a planning law is established. Such contraventions might be …a contravention of the planning scheme…” and he also identified that [emphasis mine] “(20) The planning laws, including the planning schemes, are part of the public law of Victoria intended for the benefit of the public generally”).
The council planner, Peter McWhinney, specifically noted in his report to council dated 11 June 2008 about man X, man Y and CASACIR’s application PLA0010/07 for a quarry WA1347 that: “The objections are quite correct as the detail of the application reports is flawed in a number of places. This does not build confidence in the assertions of compliance with guidelines… The use of modelling is flawed and the results would be expected not to be exactly reflected by reality”[2]. And the reality of the severe detrimental impacts was certainly realised, proving the reports and modelling to be false and that man X, man Y and CASACIR had lied and ignored legislation (including the planning scheme) and authorised others to also lie on their behalf and to ignore legislation.
Having read the report to council and therefore knowing that what they had authorised and approved as unequivocal fact was in fact fraudulent, on behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal that [emphasis mine]: “… the proposal [for the Neerim North quarry] is appropriate for the site given that: the proposal is consistent with State Planning Framework [and] the proposal is consistent with the Municipal Strategic Statement, Local Planning Policies and particular provisions of the Baw Baw Planning Scheme”, and “The proposed use and development … is consistent with orderly and proper planning; [and] complies with the policies and provisions of the Baw Baw Planning Scheme” – let’s see (1) how accurate or how fictional and fraudulent these claims were, (2) if man X, man Y and CASACIR complied with the planning scheme or not, and (3) if, given the requirements under the EIDA and, subsequently, the MRSDA, the work authority should in fact have been granted, and (4) whether or not the work authority (and therefore the planning permit) should be cancelled. Some of the planning scheme’s requirements are listed below, along with the failures to meet them at the Neerim North quarry [emphasis mine below].
Failure to comply with MRSDA s77I(3)(c) (and previously with s.19 of the EIDA (the Extractive Industries Development Act 1995(Vic))
Legally binding planning scheme requirements for amenity protections in relation to noise
“13.04-1 Noise abatement–Strategy: Ensure that … community amenity is not reduced by noise emissions, using a range of building design, urban design and land use separation techniques as appropriate to the land use functions and character of the area”.
Peter Mcwhinney, the council planner, stated in his report to council dated 11 June 2008 that: “The noise impact assessment itself qualifies its predictions noting the ‘the quarry site and surrounds occupy complex topography, not amenable to simple noise prediction methods’”[3]– thereby proving that when man X, man Y and CASACIR made the following presentations to VCAT, they knew that their claims were false: on behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “… that the amenity for local land owners / occupiers will not be prejudiced by noise impacts from the proposal”, and that it “…. will not cause detrimental off-site impacts by way of noise”, Our amenity was frequently detrimentally reduced by loud, frequent and unacceptable noise from the quarry – this is in spite of the work authority’s condition 19.2 stating that there was to be no “unacceptable noise”. The planning scheme requires that our amenity be protected (as a bare minimum), but it was not only failed to be protected, it was significantly, frequently, and detrimentally impacted. Man X, man Y and CASACIR breached, and are still breaching, these planning scheme clauses, and fraudulent, misleading and inaccurate information and claims have been provided about it. The noise created by man X, man Y and CASACIR’s actions at the quarry was horrendous, and made living there impossible and excessively stressful. They deliberately failed to keep the noise down; for example: they failed to implement the required broadband beepers in a timely fashion (or, in some circumstances, at all); for many months they failed to use the entirely silenced drill as demanded by their permit and as undertaken by them to use on all occasions; they failed to build the bunds in a timely fashion; they failed to plant the vegetation intended to assist in the deadening of noise in a timely fashion (or in some situation, at all). In addition, the demands of the “separation techniques” were ignored (see the information on buffers below). Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information and claims about it.
Legally binding planning scheme requirements for amenity protections in relation to air quality
“13.04-2 Air quality protection– Objective: To assist the protectionand improvementof air quality.”
“13.04-2 Air quality protection– Strategies: Ensure that land-use planning … provision contributes to improved air quality by: … Ensure, wherever possible, that there is suitable separation between land uses that reduce amenity and sensitive land uses. Policy guidelines: Planning must consider as relevant: * State Environment Protection Policy (Air Quality Management). * Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990) in assessing the separation between land uses that reduce amenity and sensitive land uses.”
The law otherwise states in the Protocol For Environmental Management State Environment Protection Policy (Air Quality Management) Mining And Extractive Industries (the SEPP(AQM)PEM): “2.2 The SEPP AQM sets out the framework for managing emissions into the air environment. Emissions are managed in such a way as to ensure that the air quality objectives of the SEPP AAQ are met, and continuous improvement in Victoria’s air quality occurs, in accordance with the State’s other environmental, social and economic development goals… Emissions of all these indicators to air must be managed to ensure that the beneficial uses of the air environment are protected and that continuous improvement in air quality is achieved”.
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “… that the amenity for local land owners / occupiers will not be prejudiced by noise impacts from the proposal”, that “…the subject proposal will not detrimentally impact upon the air quality of the area”, and that it “… will not cause detrimental off-site impacts by way of airborne particulates”. However, the reality is that the requirement for the “protection and improvement of air quality” was ignored, and the taste of dust often occurred with frequent prolific and visible dust emissions, and to such a point that eventually even the then DPI officer, Anne Bignell, could no longer ignore it and had her co-worker, Bob Duncan, issue a s110 Notice for the contravention. In addition, the document that had to be considered as relevant at the time, the “Recommended Buffer Distances for Industrial Residual Air Emissions” (now replaced by the EPA document 1518) has been totally ignored. The planning scheme requires that our amenity be protected (as a bare minimum), but it not only failed to be protected, but was significantly, frequently, and detrimentally impacted, including by the dust produced by the water cart that was supposed to settle the dust. Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information and claims about it.
Legally binding planning scheme requirements in relation to buffer and extractive industry
“14.03-2 Stone resources– …Provide buffer areas between new extractive industries and sensitive land uses, determined on the following principles: * Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit”.
“17.02-2 Industry– …Provide adequate separation and buffer areas between sensitive uses and … quarries to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards”.
“52.09 Extractive Industry and [EIIA]– Purpose: *To ensure that use and development of land for extractive industry does not adversely affect the environment or amenity of the area during or after extraction”. *the ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject land in accordance with the Regulations associated with the Mineral Resources (Sustainable Development) Act 1990 and other relevant regulations”, the effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area. *Any proposed provisions, conditions or requirements in a ‘Work Authority’ to be issued under the Mineral Resources (Sustainable Development) Act 1990.”
Further, EPA produced a Publication 1413 states “(page 17) Some industry uses may be obliged under an approval document or the planning scheme to maintain a ‘buffer’ of land around their site where sensitive land uses are restricted. For example, quarries have obligations under clause 14.03–2 of the Victoria Planning Provisions”.
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “The site is located a considerable distance from established residential areas and is … appropriately buffered from the nearest sensitive uses”, “The quarrying activities are a considerable distance from residential areas and sensitive uses” and “… stone can be extracted from the subject land without adverse impact on environmental values of the area or adverse amenity impacts on nearby sensitive uses”.
Peter Mcwhinney, the council planner, accurately stated in his report to council dated 11 June 2008, that: “[Man X, man Y and CASACIR do] not control (own) the land within the recommended buffer. The separation distances between where extraction will be occurring and sensitive receptors (dwellings on other land)”, and “In terms of controlling its own buffer the proposal does not come close to the ideal proposing only a 20 metre setback along Neerim North Road and to the properties to the north”[4]. The planner then went on to quote the inaccuracy of a number of the buffer distances quoted by man X, man Y and CASACIR, including their quoting of a distance of 1,000m for a dwelling at 370 Neerim North Road, when they were fully aware of the fact that it was actually only 300m from rock removal at the quarry site. Additionally, man X, man Y and CASACIR’s own documentation noted that our first house was only 140m from the boundary of the quarry (our new house was only 152m from the same boundary). They absolutely failed to provide any mandatory “clearly defined buffer” and they failed to own or control the entirety of the mandatory buffer. It is also to be noted that their documents actually stated their determined intention that the performance standards were to be met on land not owned or controlled by themselves. The buffer is required so that the amenity reducing impacts (e.g. noise and dust, etc) are contained within the site, and so that the ambient situation is protected and maintained. However, this was totally ignored – in part because, as stated below, there is no provision of the required “clearly defined buffer area”, and there have been significant detrimental amenity impacts.
In their statement of claim presented to the Supreme Court as absolute and unwavering fact, man X, man Y and CASACIR fraudulently claimed that they: “intended (and continue[d] to intend) to meet its performance standards for the Casacir quarry land and the Casacir quarry operation” – thereby intentionally trying to give the false impression that they would meet the requirements on their own land when that was not the case. However, man X agreed under oath that this was not so when he clarified that where we built our house on our land was intended to “try and impact buffer zones”[5]– if the buffers were entirely on land owned and/or controlled by man X, man Y and/or CASACIR as required by law, the buffer zones could not be impacted by any location we built.
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information and claims about it.
Legally binding planning scheme requirements in relation to agricultural land and farming
“11.05-3 Rural productivity – Objective: To manage land use change and development in rural areas to promote agriculture and rural production”
“14.01-1 Protection of agricultural land: Strategies: Ensure that the State’s agricultural base is protected from the unplanned loss of productive agricultural land due to permanent changes of land use.”
“14.01-2 Sustainable agricultural land use– Objective: To encourage sustainable agricultural land use.”
“35.07 Farming Zone – Purpose: To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies. *To provide for the use of land for agriculture. *To encourage the retention of productive agricultural land. *To ensure that non-agricultural uses…do not adversely affect the use of land for agriculture”.
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “The [quarry] proposal is consistent with the provisions of the Farming Zone”, “The proposed use and development … will not cause detrimental impacts on agricultural activities in the area”, “The proposed use and development… complies with the policies and provisions of the Baw Baw Planning Scheme”, “The proposal is consistent with the Local Planning Policies and particular provisions of the Baw Baw Planning Scheme” and “The proposal is consistent with State Planning Framework”.
However, because of the quarry we were actually stopped from our agricultural enterprise by their illegal removal of the water source upon which we relied under law; as well as subjecting us and our property to severe noise and dust from their quarry (in breach of the law). Rather than ensuring “that the State’s agricultural base is protected from the unplanned loss of productive agricultural land”, man X, man Y and CASACIR actually ensured that there were such losses rather than encouraging “sustainable agricultural land use”. They also ensured that we suffered losses including, but certainly not limited to, the loss of protection of the amenity that had existed prior to their arrival. Man X, man Y and CASACIR unequivocally stated their intention to permanently remove the spring that feeds Kookaburra Creek (the water supply upon we relied), the aquifer/s that fed it, as well as the upper reaches of Kookaburra Creek and its upper catchment – the impact of this meant the permanent loss of any agricultural operation on our land.
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements for protections in relation to catchment and water
“14.02-1 Catchment planning and management– Objective: To assist the protection and, where possible, restoration of catchments, waterways, water bodies, groundwater…. Strategies: *Protect water catchments …. *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 … *Require the use of appropriate measures to restrict sediment discharges from construction sites”.
“14.02-2 Water– Objective: To protect water quality. Strategies: … * 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…. * Discourage incompatible land use activities in areas ….”
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal that:“…the subject proposal will not adversely impact on the quantity or quality of surface water or groundwater in the area. Nor will there be any significant impacts on the catchment, waterways or water bodies. The proposal is consistent with the requirements of this policy” and “The proposed use and development… will not cause detrimental impacts on surface waters or groundwaters”.
However, for example: rather than assisting in the “protection and, where possible, restoration of catchments, waterways, water bodies, groundwater”, man X, man Y and CASACIR illegally took the water, polluted the water, destroyed catchment areas, and further intend to permanently remove the spring, its aquifers, upper reaches and upper catchment of the waterway, and took (and possibly polluted) groundwater. Rather than retaining the “natural drainage corridors with vegetated buffer zones at least 30m wide along each side of a waterway”, man X, man Y and CASACIR dug up the bed and banks of Kookaburra Creek and removed the 30m buffer and seriously and detrimentally impacted upon the waterway’s viability and integrity. Further, rather than retarding “the flow of stormwater runoff from developed areas”, they performed works that increased the runoff and the contamination of the stormwater in breach of the law and in breach of their own undertakings that the site was a complete re-use and recycle site with no external emissions. Rather than ensuring that “works at or near waterways provide for the protection and enhancement of the environmental qualities of waterways and their instream uses”, they performed works that were both illegal and unauthorised and which significantly decreased “environmental qualities of waterways” by illegally and in an unauthorised manner diverting the flow of water – and repeatedly lied about it. Further, they deliberately and knowingly committed fraud by having signed a legal documents with which they knew they would not be complying (and which accusation they have never denied). By their actions, they additionally caused the discontinuation of the “instream uses”. ….”.Man X, man Y and CASACIR did not and are not protecting the water quality. Quite the contrary, they made part of Kookaburra Creek into a drainage line by using it for their drainage; they failed to monitor water quality and quantity prior to the commencement of the quarry and made polluted results of their very belated monitoring their “control” levels so as to be able to maintain those polluted levels; their original monitoring bores were close to contamination sources, and they ripped out one of the bores without having decommissioned it. All the agricultural uses existed prior to the commencement of man X, man Y and CASACIR’s quarry, making the quarry the “incompatible land use activity”. This area had previously had beautiful potable water, but not only was and is Kookaburra Creek polluted by their quarry, they have serviced and re-fuelled (and probably still are servicing and refuelling) vehicles, equipment and machinery in the pit and surrounding area, thereby polluting the waterways and dams (and therefore the groundwater recharge – especially since they acknowledged in writing that the groundwater is recharged from the quarry dam and the dam is supplied by drainage and wastewater that is not filtered by silt or sediment traps (in spite of making such undertakings that such silt and sediment traps would be installed in their work plan and planning report – with those documents being an integral part of their planning permit and the work plan being an integral part of their work authority)).
It should be noted that the removal of the flow of Kookaburra Creek was and will be entirely illegal without the consent of impacted parties (they have done it once already and had to restore it after we took legal action against them and we had to threaten yet further legal action to get them to retire it). Man X, man Y and CASACIR knowingly and deliberately impacted the quality of flow of Kookaburra Creek by the discharge of drainage and the catchment area by excavations. The quarry breached and is still breaching this planning scheme clause by impacting negatively on “quality and the impact on any affected water uses”, there are further and permanent significant adverse impacts planned by them, and they have provided fraudulent, misleading and inaccurate information and claims about it, including having deliberately lied about it under oath in VCAT and the Supreme and Federal Circuit Courts.
They failed to even apply for a take and use licence but took and used water illegally for 9 months. Further, they failed to even apply for a works on waterway permit for the illegal destruction of Kookaburra Creek and its catchment and aquifers, and they failed to provide a legislated wetlands area when required to do so, and still have not done so 7 years (as at mid 2019) after it was legally required.
Legally binding planning scheme requirements in relation to the environment
“14 Natural resource management– Planning is to assist in the conservation and wise use of natural resources including… water, land, … to support both environmental quality and sustainable development.”
“21.07 Environmental Values– Ensure environmental quality and that expert advice is obtained on the potential impact of developments or land uses on the environment and amenity of residents”.
“21.07 Environmental Values– This focuses on the protection, conservation and sustainable management of the Shire’s natural assets… *The Shire contains mountainous country, rural areas and significant water catchments. These all play a significant role in the provision of the State’s water and natural resources. … *The demands for the use of the natural resources of the Shire, including water, timber and extractive materials, have an impact on the sustainability of the natural environment. Baw Baw Shire falls mainly within two catchments, the Westernport catchment, and the West Gippsland catchment. Land use and development within catchments may have an impact on water quality and natural resource management both within and outside the Shire. Therefore a whole of catchment approach is required for the management of natural resources and in the natural environment in the exercise of decision-making…. The long term sustainable management of the environment, including the maintenance of a high quality natural resource base, is the most important factor influencing the economy, lifestyle and recreational choices in the Shire. Objective 1 – To ensure development proposals demonstrate a positive contribution to the environment by taking into account the capability of the land in terms of soil stability, erosion, flood and drainage management and the retention of native vegetation. … *Apply State policies on Environment under Clause 11.03-2, Management of Resources under Clause 11.03-3, and those relating to the environment under Clause 15. *Apply local policy, Soil removal, under Clause 22.03-2 in a planning application that involves soil removal both as a use in itself or as part of another development or use, such as horticultural sheds. * Apply local policy, Effluent Disposal and Water Quality, under Clause 22.06-4 for a planning application that involves the development of a waste disposal device for black or grey water. * Apply the Interim Guidelines for Potable Water Supply Catchments to use and development applications in those proclaimed catchments”.“Ensure environmental quality and that expert advice is obtained on the potential impact of developments or land uses on the environment and amenity of residents”.
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that:“… the quarry operations will be undertaken in a manner that maintains environmental quality”, “… stone can be extracted from the subject land without adverse impact on environmental values of the area or adverse amenity impacts on nearby sensitive uses”, “The purpose of [52.09] is to ensure that use and development of land for extractive industry does not adversely affect the environment or amenity of the area during or after extraction”, “the proposal will not have any adverse environmental impacts” and (amongst other relevant claims) “the use and development … will not cause detrimental impacts on surface water”. As shown above and below, these claims are false and very misleading, at best.
If expert advice is obtained, it has to be valid and not biased, and has to be accurate – sadly there has been much that has not been accurate, and it has been grossly biased. Regardless of expert advice, the “amenity of residents” has been significantly reduced, in spite of claims to the contrary: there have been and are noise impacts, dust impacts, visual impacts, safety impacts, loss of the peace and quiet that was enjoyed prior to the advent of the quarry, loss of the ability to operate an agricultural activity, ….
There is nothing sustainable about what man X, man Y and CASACIR are doing – they are removing valuable prime agricultural land from being used, removing rock that will not grow back or return (obviously); the final landform will not allow for the reinstatement of the previous agricultural land use; they are intending to immanently and permanently destroy a spring, a large part of the aquifer which feeds it, the upper catchment and upper reaches of its watercourse (and permanently removing the natural flow of spring water from our property); surface and groundwater has been and is being removed from the environment; and there is the discharge of quarry wastewater and drainage that emitted from the site into our property (through Kookaburra Creek) as well as into the Erosion Management Overlay (and which ends up in Latrobe River). Further, the “conservation” of the “water” and our “land” was ignored and instead, the water was taken, will be further (and permanently) taken and this will cause a further significant detrimental impact to the land. This equates to loss of “both environmental quality and sustainable development” instead of the required preservation. There has been no assessment of the flora and fauna in the surrounding area (an assessment required by the planning scheme), there are and will be further “adverse environmental impacts”, as identified.
Man X, man Y and CASACIR breached these planning scheme clauses, and have provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements in relation to tourism
“17.03-1 Facilitating tourism– Encourage the development of a range of well designed and sited tourist facilities, including … smaller scale operations such as host farm, bed and breakfast…. and be compatible with and build upon the assets and qualities of surrounding… rural activities and cultural and natural attractions”
“21.09-4 Economic Activity– Seek to attract high quality tourist development that is compatible with the environmental values of the area”
“22.05 Economic Development– Baw Baw Shire Council seeks to attract high quality tourist development…”.
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “The proposed use and development … will not cause detrimental impacts on tourism activities in the area” and “The proposal is consistent with the provisions of the Farming Zone” and that “… tourism is not an activity that has direct planning support in farming zones”.
Bed and breakfast tourism is an activity that is “compatible with” and would “build upon the assets and qualities of surrounding… rural activities and … natural attractions”. It is also an “as-of-right” under the Farming Zone (35.07) whereas extractive industry (quarrying) is not an “as-of-right” under the FZ (Farming Zone), is not even an “as-of-right” in an EIIA (Extractive Industry Interest Area). We had been barred from having a bed and breakfast due to man X, man Y and CASACIR having thrust (for example) severe noise and dust upon us and by significantly reducing our amenity. This quarry fails to meet the legislated requirements and has significantly impacted the ability of our property in its usefulness, including tourism.
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements in relation to road construction
“22.06-3 Road construction – This policy applies to the construction of roads. … New roads need to be constructed to specified standards and criteria. (Objectives) The objectives of this policy are: *To improve and upgrade roads and infrastructure that is commensurate with the expected impacts from the use or development of land. *To ensure that all use or development does not degrade existing roads and access. ….”
On behalf of Man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “The proposal is consistent with the Municipal Strategic Statement, Local Planning Policies and particular provisions of the Baw Baw Planning Scheme”, “The proposed use and development… complies with the policies and provisions of the Baw Baw Planning Scheme”, “The proposed use and development… will not cause detrimental impacts on public safety” and “The proposed use and development… will not cause detrimental off-site impacts by way of traffic movements”.
A new section of the Neerim North Road that was required to be constructed by man X, man Y and CASACIR was not constructed for over a year after it had to be constructed and was not properly sealed until over two years after it had to be sealed. By the frequent use of heavy haulage, road trucks and the like, man X, man Y and CASACIR caused other sections of the Neerim North Road to deteriorate to a significant extent and, in spite of it being a condition that man X, man Y and CASACIR repair and maintain it at their own cost, man X, man Y and CASACIR did not do so in a manner that made the road safe. In fact, in mid 2019 (10 years after they were required by law to have been repairing and maintaining the road) it was obvious that they are still not doing so. In fact, man X, man Y and CASACIR stated how little they were willing to “contribute” towards the repairs and maintenance, in spite of the requirement that they pay the entire cost!
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements in relation to effluent
“22.06-4 Effluent disposal and water quality– This policy applies to all development that cannot be serviced by reticulated sewerage. (Policy basis) Development which can’t be serviced by a reticulated sewerage system should be designed, sited and developed so it doesn’t lead to a pollution of land and water resources. (Objectives) *To ensure water quality is not affected by development. *To prevent the discharge of effluent off site. *To ensure that the density of effluent disposal systems is suitable to the soil type and topography of the site. *To provide for alternative effluent disposal systems, such as package treatment plants. *To encourage the maintenance of domestic septic systems in accordance with the Code of Practice – Septic Tanks (EPA, 1996). (Policy) It is policy that:… *Development of commercial, …or industrial land uses should not be permitted unless it can be clearly demonstrated that such an activity will provide a net benefit to the stability or health of the waterway… *Septic tanks and other forms of waste water treatment should clearly demonstrate that they will neither increase the peak discharge, volume of discharge or quality of discharge to a watercourse. ….oTopographic maps should be prepared detailing absorption areas which can be used for the disposal of effluent, and showing that there will not be a discharge of waste water from the site”
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “… the proposal [for the Neerim North quarry] is appropriate for the site given that: the proposal is consistent with State Planning Framework [and] the proposal is consistent with the Municipal Strategic Statement, Local Planning Policies and particular provisions of the Baw Baw Planning Scheme”, and “The proposed use and development … is consistent with orderly and proper planning; [and] complies with the policies and provisions of the Baw Baw Planning Scheme”.
However, man X, man Y and CASACIR did not obtain a permit for a septic tank in spite of using the tank for well over two years without the permit, and saw nothing wrong with that (if they had seen anything wrong with it they would have obtained a permit)! Who knows if they have a permit yet – 10 years after they had to do so! Further, the lines were in a location that knowingly polluted the groundwater and Kookaburra Creek (our water supply).
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements for protections to property values
“14.01-1 Protection of agricultural land – In considering a proposal to … develop agricultural land, the following factors must be considered:…*The impacts of the proposed development … with particular regard to land values…”
On behalf of man X, man Y and CASACIR, it was knowingly falsely presented as absolute fact by Jack Kraan to the 2008 tribunal, that: “The proposed use and development… complies with the policies and provisions of the Baw Baw Planning Scheme”, “The proposed use and development… will have positive economical and social benefits to [sic] the local community”, “The proposal will provide a net community benefit”, “The proposal is consistent with State Planning Framework” and “The proposal is consistent with the Municipal Strategic Statement, Local Planning Policies and particular provisions of the Baw Baw Planning Scheme”.
However, in 2009 the Baw Baw Shire Council acknowledged that man X, man Y and CASACIR’s quarry had already caused a 21% decrease in our property value and the next year council acknowledged a further decrease in value of 10% – this could hardly be termed or categorised as a benefit. Man X, Man Y and CASACIR did not care, and still do not care about the impacts on others, including the detrimental impact on others’ property values.
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements in relation to quality of life
“21.09-3 Economic Activity – Protect the amenity of residents…”
“22.01 General land use and development policies– Policy– It is policy that: * The co-ordinated and planned development of land should be pursued in order to achieve… a continuing increase in the quality of life for all residents”
“01 Objectives: … To secure a pleasant, efficient and safeworking, living and recreational environment for all Victorians…”
When the false claims were made as absolute fact by Jack Kraan on man X, man Y and CASACIR’s behalf to the 2008 tribunal that: “There will be a substantial flow on of economic benefits to the local …community generated by the quarry. Flowing from the economic benefits are social benefits such as a higher standard of living for local residents and a more vibrant community”, “the proposal will have significant economic and social benefits for the local and regional communities”, “the proposed use and development… will have positive economical and social benefits to [sic] the local community”, “the proposal will provide a net community benefit…” and “the proposed use and development… will not cause detrimental off-site impacts”, man X, man Y and CASACIR were already aware that the council planner, Peter McWhinney, had advised them that “The quarry will clearly result in land use conflicts” and “The quarry, in all likelihood will be operating for decades which contributes to the significance of council’s decision. This is long term impact if it goes ahead”[6]. In addition, the planner specifically noted that: “the [planning] 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”[7]. Further, prior to man X, man Y and CASACIR’s knowingly fraudulent claims, we had previously advised them that they could not comply with the planning scheme, but they ignored this and proceeded regardless; and they have continued to deny the obvious and significant detrimental impacts that occurred, and which man X, man Y and CASACIR’s own documentation showed were intended to be further inflicted in continued beach of the planning scheme.
Our amenity was not protected – having a higher than ambient noise and dust destroys the amenity (ambient level being the level prior to the quarry commencing any of its activities). Because of the quarry, the “working, living and recreational environment” was no longer pleasant, safe or a place where we would choose to be. There had certainly not been any protection let alone any “increase in the quality of life for … residents”, only significant and ongoing detrimental impacts.
In addition, there was not any economic benefit for anyone but man X, man Y and CASACIR, council, and Gawdy and Brown (the two people who sold man X, man Y and CASACIR the land). In fact, just trying (and failing) to get man X, man Y and CASACIR to comply with the planning scheme and the conditions that were supposed to govern their quarry cost us a lot of money (and we lost the cases because they repeatedly lied, including under oath). Add to that the aforementioned losses by way of the inability to operate an agricultural operation on our property any more, the loss of tourism potential and the loss of property value – where was the economic benefit to us in any of that?
In addition, the advent of the quarry resulted in considerable angst in the community – hardly a “more vibrant community” or “a nett community benefit”. There was no benefit, but there was a serious, ongoing and decrease in “quality of life”.
Man X, man Y and CASACIR breached these planning scheme clauses, and provided fraudulent, misleading and inaccurate information about it.
Legally binding planning scheme requirements
Man X, man Y and CASACIR did not comply with the planning scheme, are still not complying with the planning scheme, and have provided a significant amount of fraudulent, inaccurate, contradictory, inconsistent and vague information that lacks substantiation – which, because of its failures, was misleading – resulting in obtaining their work authority. I do, however, find it impossible to believe that it was due to any naiveté because man X, man Y and CASACIR own and operate a number of other quarries and are aware of dust, noise, water, catchment, road, and all the other issues that result from such a quarry. Further, repeating what the council planning officer, Peter McWhinney, had already acknowledged in respect of the Neerim North quarry [emphasis mine]: “[W]hilst 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”, “The amenity of persons resident in proximity to the quarry will clearly be detrimentally affected by the quarry with this impact going to be present in all likelihood for a considerable period of time”, “This is long term impact if it goes ahead” and “… it is accepted that a quarry would significantly detract from [the] lifestyle and residential amenity…”, so anyone trying to say they were unaware of the impacts would not be making comments that were factual, truthful or accurate. Man X, man Y and CASACIR’s denial of the reality that there would be and/or are impacts should be classified as deceptive and misleading conduct, and they should be so charged.
Seriously, how could it possibly be honestly claimed that there is compliance with the planning scheme and therefore the MRSDA in these matters ??
Failure to comply with MRSDA s.77I(3)(c) (and previously with s.19 of the EIDA (the Extractive Industries Development Act 1995(Vic))
Man X, man Y and CASACIR had not obtained, for example, the necessary permits and or licences (consents) for example, for: (1) the number of works on waterway that were required, (2) the required licence to take and use water, (3) the required licence for the discharge of drainage and wastewater, (4) the planning permit that was required for the permanent buildings and weighbridge, or (5) the required septic tank permit. It is to be noted that man X, man Y and CASACIR still did not obtained a permit for some of the works on waterway that were performed, nor is it likely that they have obtained a permit for works still proposed to be performed – especially the major works that they propose: to physically, actually and permanently destroy the spring at the headwaters of Kookaburra Creek, and Kookaburra Creek’s upper catchment and upper reaches, and the aquifer which feeds the spring. Further, according to FOI results, man X, man Y and CASACIR have apparently still not applied for a discharge licence to discharge its quarry drainage and wastewater off-site (and through our former property – which they required our permission for and did not receive any such permission). In addition, they have continued to do work outside the area allowed, and continued to do so in spite of repeated instructions from the regulatory authorities not to do so and in spite of the associated repeated instructions to remove/undo the works done.
Summary
Therefore, based on the MRSDA requirements, the work authority and planning permit should never have been granted and should be immediately cancelled in accordance with s77O(1) of the MRSDA.
[1] S.19
[2] Pages 14 & 21
[3] Page 14
[4] Planner’s report dated 11 June 2008, at page 14
[5] Man X’s sworn testimony in the Supreme Court on 12 April 2013, at lines 1-2
[6] Both quotes from the Planner’s report dated 11 June 2008, at page 20
[7] Planner’s report dated 11 June 2008, at pages 12 & 13