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.
Man X, man Y and CASACIR referred to Kookaburra Creek as being a “drainage line” – Such references to it being a drainage line are not only a concealment of fact and an obstruction of justice, but showed their intentions with regard to their attitude to the flow and their discharge of pollutants into it in blatant disregard to our objections, complaints and pre-existing legislated rights. In line with their generally exhibited attitude, man X, man Y and CASACIR decided that it was a great and environmentally responsible idea to not monitor the flow at all for quality until they had a polluted “control” or “background” reading by which to monitor their further pollution. Hardly surprising given their general attitudes to, and disregard for, what I perceive is the environment and others’ rights.
To call Kookaburra Creek a drainage line was grossly misleading given that: *the flow was from a spring, *it was a waterway under the definition in Section 3 of the Water Act 1989, *it was identified as a waterway in Vicmap 8122-3-3, *it was also identified as a waterway by Council, WGCMA, SRW, the then Minister for Water, Department of Geographical Names, DSE documents (in other words, they all said that Kookaburra Creek was, and is, a “waterway”), *it was even identified as a waterway by man X, man Y and CASACIR’s then hydrogeologist, John Nolan, in his witness statement and hydrogeological assessment[1], and *man X himself[2] completed a retrospective application for some of their illegal works on the waterway [3] which application defined the flow as a “waterway”.
However, as stated previously, man X, man Y and CASACIR, together with Smith and Peake (man X, man Y and CASACIR’s former barrister), presumably assuming superior knowledge, disputed this. This included in their points of defence prepared by Smith and settled by Peake in relation to our water claim in VCAT against man X, man Y and CASACIR for their illegal diversion of the flow of Kookaburra Creek: “4 [Man X, man Y and CASACIR] denies that [the her] land and [their] land is traversed by a waterway. [Particulars]: There is no waterway as defined under the Water Act 1989 that traverses [her] land”.
In spite of the Water Act 1989, DSE documents, SRW documents and WGCMA documents all clearly stating that we had the right to the natural flow of Kookaburra Creek for stock and domestic use, man X, man Y and CASACIR disputed this (in their Points of Defence prepared by Smith and settled by Peake in relation to our water claim against man X, man Y and CASACIR: “7 [Man X, man Y and CASACIR] denies the allegations [that she and her related parties are entitled to take and use water from the Kookaburra Creek for stock and domestic purposes on [her] land]”.
The Water Act 1989 was very explicit that, because Kookaburra Creek (whether named or not) flowed through our property, we had the right to that natural flow for stock and domestic use, without a need for a permit: “8. Continuation of private rights to water (1) A person has the right to take water, free of charge, for that person’s domestic and stock use from a waterway or bore to which that person has access—… (b) because that person occupies the land on which the water flows or occurs; or… (3) A person has the right to use— (a) water taken by that person from a waterway or bore under a right conferred by subsection (1); or (b) while it is within the waterway or bore, water which that person has the right to take under subsection (1). (4) A person has the right to use— (a) water taken or received by that person in accordance with a licence or other authority issued to that person under this Act or any corresponding previous enactment”.
As stated, in total disregard to the law and our legislated rights, man X, man Y and CASACIR illegally took the flow of Kookaburra Creek and diverted it underground – without permit, licence, authorisation, or permission to do so.
We were forced to take legal action to have the flow restored – and as identified above, they lied and said they hadn’t diverted the flow, then said that even if there had been a flow that we were not entitled to use it. It is amazing that they think they know so much more than the lawmakers.
At VCAT, the day prior to the case commencing (with the authority of man Y and CASACIR, and under the oversight of Smith and Peake), man X signed a binding Terms of Settlement Agreement at VCAT stating that man X, man Y and CASACIR (1) agreed to reinstate the flow within a specified time-line and (2) that they would never again interfere with the flow.
However, in what is sadly typical fashion, they then failed to restore the flow for many more months – until we were in the process of taking further legal action against them by having our claim against them re-instated – then, and then only, did they restore the flow (after we had been without it for 18 months). That was only the first of the breaches of the Terms of Settlement Agreement. Why then were we surprised given that their own undertakings apparently mean nothing to them unless it is in their interests to comply with them? Well, it was simply horrifying to us as we relied on the flow and, under law, were entitled to use the flow under s8 of the Water Act 1989.
Then, even more astounding was the fact that they then produced a document (a spring water management plan (“swmp”)) showing that not only were they going to breach the Terms further by “interfering” with the flow again, but that they were intending to absolutely destroy the spring, together with its upper catchment and watertable, all of which that fed the flow – thus deliberately removing the entire flow from our use permanently. This showed their fraud in signing the document, and their knowing, deliberate, intentional and pre-planned deceit, as well as their total lack of care for our legal and pre-existing legislated rights, and for the impacts on our land. Interesting, but sad, is the fact that they apparently believe that this was not treating neighbours with contempt and blatant disregard! They have justified their unjustifiable actions in their own minds – which explains a lot of what happened in other issues.
Man X, man Y and CASACIR then stated their intention to take the flow of what had been (prior to the arrival, and pollution, of man X, man Y and CASACIR’s quarry) clean, clear spring water, and supposedly “replace” it with the admitted pollution of their quarry drainage and wastewater.
Further, they told the 2008 VCAT members that they were going to install what they called a “wetland” – being approximately 360m of open drain with no settling area. The swmp (in spite of man X, man Y and CASACIR’s assurances to the 2008 VCAT that the open drain “wetland” would exist) did away with it and stated, instead, that the filthy discharge would now discharge through a much shorter open drain on a slope that again had no settling ability and was fed from 2 dams with the admitted existing problems of high turbidity, E.coli, hydrocarbons, and other pollutants. From there, without any impediment, they claimed that it would discharge into Kookaburra Creek – and we were supposed to be grateful and accepting of it. One of those dams is continually referred to by them variously as being a “clean water dam” and a “fresh water dam” but which is generally covered in either green slime or is dirty with sediment. In fact, this “wetland”/open drain, had, by law (in order to be in compliance with their permit and work authority) to be installed and operational in stage 1 – but they have been in stage 2 for at least 8 years with no such “wetland”/open drain being installed/created/built.
I was cross-examined at VCAT by Peake (who was instructed by Smith). He questioned me about objecting to the removal of the spring, catchment and flow of Kookaburra Creek (thereby further revealing his own knowledge of man X, man Y and CASACIR’s intention to deliberately breach the binding Terms of Settlement), and when I said that we would have to object to the proposal because it would interfere with our rights and our need for the flow of water, I was labeled as being vexatious for saying that I would be protecting our rights!
In addition, according to EPA documentation, man X, man Y and CASACIR had to obtain our authorisation to send their discharge through our property – however, they never sought our authorisation and would not have been able to obtain it (which is why they did not seek it). Further, even if the authorities circumvented this requirement, there was absolutely no guarantee that the discharge would: (1) be provided, (2) be of suitable quality for cattle, (3) be of sufficient quantity to keep our cattle watered, or (4) be of almost continuous supply (we cannot have a dam because of the steepness of the land).
As stated earlier, man X, man Y and CASACIR, against a lot of proof to the contrary, insisted that Kookaburra Creek was a “drainage line” – and this was presumably claimed in order to allow them to continue to discharge both their quarry drainage and their wastewater into it. Permit conditions stated [emphasis mine]: “27 Prior to Stage 2 works commencing and based on the results of the flow and water quality monitoring program, a spring water management plan to the satisfaction of the West Gippsland Catchment Management Authority is required. The plan will need to ensure that no adverse impacts to downstream waterway health result from the activities including impacts once quarrying operations have ceased”.
Replacing spring water with quarry drainage and wastewater with hyrdrocarbons, E.coli, high turbidity and other pollutants would certainly have adverse impacts! And would result in a further breach of their planning permit.
Past performance is the indicator of future behaviour. If this can happen to us it can happen to you – if big business wants your water and the authorities choose them over you then your water rights are not safe, in spite of legislation saying it is, and in site of having pre-existing legislated rights to it.
[1] Under the oversight of Hyder Consulting
[2] On behalf of himself, man Y and CASACIR
[3] He never applied for a permit to deviate the flow of Kookaburra Creek, man X, man Y and CASACIR just did the works – knowing that it would cause considerable problems for us.