Don't Bother Going to VCAT - CoGB and the Regulators Have Their Own Priorities

The Victorian Civil and Administrative Tribunal (VCAT) specifically demanded a 'chain mesh' fence as a security measure at the Splitters Creek Facility. Council and the regulators have dismissed this Condition and allowed the mine to make its own decision as to the type of fence it will erect.

But this isn't the first time VCAT has been undermined and residents' concerns cast aside in order to over-facilitate this mine's construction over recent months and years.

Immediately below is the response Ms Pam King received from City of Greater Bendigo Senior Planner Mr Bryce Kilian when she raised her concern about the adequacy of this fence and Council's continuing flouting of conditions imposed by VCAT on behalf of objecting residents.

It's as if the VCAT Decision doesn't exist... most of the time... we'll get to that in a moment.

But first check out this vacillating drivel and inane rationalisation from the City of Greater Bendigo's Senior Planner, Mr Bryce Kilian.

(And please do take note of the disturbingly telling implications underlying Mr Kilian's instinctive use of the word "permitter" when he actually means "perimeter"...? You can can read what's going through his mind with a little piece of parapraxis like that. His priority is to "permit"... he is a "permitter" and he will twist logic and invent any reason to do so.

He's obviously got his rubber permitting stamp at the ready at all times.)

 ***

From: Bryce Kilian 

Sent: Wednesday, 20 May 2015 4:48 PM
To: Colin Leask
Cc: Prue Mansfield; Peter Cox
Subject: RE: Approved Work Plan reMIN 5567 re Perimeter Security Fence
Importance: High

Hi Pam,

I have investigated your complaint and wish to provide the following outcomes.

The VCAT imposed condition stated;

‘dimensions, specifications and location of a permitter chain mesh security fence to surround the evaporation terraces and storage dam’

You are correct in stating that the fencing is/has been constructed of ring lock rather than chain mesh.

The company has interpreted the condition as simply ‘security fencing’ with the primary purpose being to limit as much as possible animals entering the facility. The City agrees with this assertion and having re-read the VCAT Order, it does not discuss the fencing detail aside from the imposition of the above condition.

This detail (ring lock) has been approved by both the City through a document detailing the conditional requirements and on the plans which state ‘1.8m high stock fence with warning sign every 100m and also by DEDJTR through the Work Plan which states same.  

It is considered that the ring lock is also more in keeping with the general style of fencing present on the surrounding properties.

The City is of the opinion that the fence is fit for purpose and meets the intent of the condition.

Regards,

Bryce.

Bryce Kilian | Senior Planner

Statutory Planning | City of Greater Bendigo

T 03 5434 6353  E b.kilian@Bendigo.vic.gov.au

***

So there you have it.

VCAT "imposes" a "chain mesh security fence".

 CoGB and DEDJTR reinterpret this as a "1.8m stock fence". 

The "company" has been allowed to "interpret" and apply the condition all by itself...

And it has done so "simply" - what else can one expect? - as a "security fence"... and DEDJTR (the former DSDBI) agrees - except for them and Council it is a "stock fence" - so no one is getting it right - but what else can one expect from these people anymore? 

And when it all boils down to it, the priority seems to be that the fence be stylish... like wearing mirrored sunglasses used to be, I suppose...

There are no other 1.8m security fences within coo-ee of this particular fence so it is difficult to understand how the area's visual ambiance is to be complemented by this obviously fashionable piece of wirey fabrication. In any case, perhaps Mr Kilian should be informed that farm fences are constructed by the farmers in the area for their function not fashion. Amazing, no?

And the function of this fence is SECURITY.

And this is non-compliance with the VCAT condition. Mr Kilian even quotes the "VCAT imposed" Condition (well he tries to... "permitter"!! Ha!) 

"it does not discuss the fencing detail aside from the imposition of the above condition"... and the detail that it does discuss and IMPOSES, Mr Kilian, is the precise and very specific detail that the fence be "chain mesh." The very detail you have dismissed; not imposed.

In other words:

"It does not discuss the fencing detail except to be adamant and specific about imposing the one detail that I have decided to ignore because it's not stylish."

What the hell is going on here?

The mine is permitted (sorry, Bryce :) by the regulators and Responsible Authority to twist and interpret the wording of Permits and Work Plans and Regulations just as it sees fit - to hell with the actual intent - and according to its own convenience... who is actually in charge here?

And here's another recent instance that illustrates such inconsistencies in the application of supposed "conditions" by the regulators when things are found to be a little inconvenient for the mineral extraction industry.

Ms King and Mr Leask operate Glen Lea, a sheep farm - at one time attempting to be chemical-free... - directly across the road from the Splitters Creek Evaporation Facility. With the construction of the terraces at the site, the water that Glen Lea usually received as run-off from the opposite paddock would be affected. They would lose up to 6ML annually according to calculations.

Now a pipe has been put in place to carry water that falls or flows around the Facility onto the Glen Lea side of the road. To provide the farm with some of that water which has otherwise been lost.  

Sounds good. But, well, initially there was to be hydro-mulch around the site. Now there is to be crushed rock. Rock that potentially contains elevated levels of various metals that would be best not to let enter the environment. Moving rocks and soils around the area is a very efficient way of moving around the contamination that has been at the heart of community concerns for some time. Golder Associates, the consultancy firm brought in to examine this contamination says as much in its Report (emphasis added):

"the antimony concentrations at the soil surface may be associated with the redistribution of mine waste including mine rock and tailings"
and 
"Activities or processes which may increase the distribution of antimony include generation of dust, erosion of stock-piled materials (surface water run-off), surface water and groundwater extraction relocation."

In light of this Ms King asked that the potentially contaminated water that flows over this crushed rock be diverted elsewhere such that it does not access their property. And that she be provided with fresh water to replace it.

Oh but now the mine is permitted to become a stickler for VCAT conditions. In a reply to the Mining Warden's office, Mandalay Resources state

The design of the evaporation facility including the location of the storage dam spillway and where the external diversion drains run to has been extensively reviewed and critiqued on multiple occasions resulting in the current layout being the final approved design at a VCAT hearing last year. One of the main points of concern raised at the VCAT hearing by Colin & Pam was that they would lose runoff water as a result of the facility's construction and accordingly the diversion drain was re-designed to channel all the runoff back to the culvert beneath the South Costerfield-Graytown Rd to the Leask property to ensure no runoff was lost. Given that this was determined by VCAT and then signed off by the City of Greater Bendigo we are not able to simply change the direction of the runoff away from the approved location to the creek as it would be in contravention of the VCAT ruling. Even if we were in agreement with Colin and Pam in changing this drainage location, we're not able to without VCAT amending their final ruling and we will not be initiating that change.

According to the Mining Warden's Office 

The above information indicates that the run off pipe was the subject of consideration during the VCAT hearing and it may be presumed that the VCAT ruling and conditions were all made having regard to the information put to VCAT during that hearing. It is understandable, therefore that Mandalay would be apprehensive about making any change to proposals put before VCAT. 

Yes, that's right. Apprehensive. Oh dear. Sounds like someone needs a Bex and a good lie down.

But returning to the fencing for a moment and we find no such apprehensiveness evident when infrastructure that contravenes the VCAT decision is erected. And no problem running that by Council and DETJTR to have things "interpreted" in a manner that is most convenient for the mine. Seriously.

And ALL OF THE CONDITIONS were made "having regard to the information put to VCAT during that hearing". 

Even the fence!

But that hasn't stopped multiple breaches of the VCAT conditions as they are reflected in the CoGB Permit and the Endorsed Work Plan.


When a cheaper fence - a stock fence NOT a security fence - is erected by the mine, that's all okay because CoGB and DETJTR have no problem ignoring the specific wording of the Conditions; of actually allowing the mine to conveniently "interpret" the wording itself!!

But should residents in the immediate vicinity of the mine wish to decline the offer of potentially contaminated water coursing over their property then... well absolutely nothing can be done.

Can you spot the contradiction here? The inconsistency? 

But even that's not  the full story. The feigned indignation of the mine that it would be asked to diverge from VCAT conditions is matched only by the audacity of Mr Kilian deeming himself and his fellow Council employees (Public Servants is what you are supposed to be, Mr Kilian...) as adequately informed and authoritative enough to override VCAT decisions when the mine requires it...

Let's hear the story of the 29 conditions Mr Kilian and his cadre missed when they were asked by the community to consider the Splitters Creek development. And how they subsequently, for a consequent development (cumulative impact, Mr Kilian), adjudged themselves as so lacking in ability that they handed responsibility to VCAT without even deigning to offer a verdict on its acceptability.

Oh, but now, when it comes to fences, Mr Kilian is quite confident that he can interpret the intent of the VCAT Members!

But VCAT Conditions and Work Plan and Permit prescriptions are just as malleable as the Council Code of Conduct in the City of Greater Arrogance.

Here, then is a brief summation of the undermining of VCAT, Permit and Work Plan conditions and of extant regulations in the City of Greater Bendigo:


In late 2013, Costerfield residents concerned about the ramshackle approval process for the construction of further evaporative infrastructure by the regulatory authorities, objected to the City of Greater Bendigo. Council dismissed the concerns and gave the Splitters Creek Evaporative Facility the go ahead.

Council admitted that they had neglected to consider the Precautionary Principle mandated by Australia's international treaty obligations and had instead placed responsibility for its application squarely on the shoulders of EPA. And EPA didn't bother either.

Council's hands-off approach came as no surprise to residents who were already well aware of the patent ignorance displayed by the so-called Responsible Authority. When the then Mayor Lisa Rufell visited Costerfield Hall for a meeting to discuss  Splitters Creek, she had no idea what the Precautionary Principle was (or that it even existed) and had to be edumacated by residents in subsequent emails. These emails were forwarded to all Councillors.

They just did not know. Not a clue.

(And not much changed subsequently. When confronted with the possibility of light pollution emanating from the facility, current Mayor Peter Cox told residents whom he was visiting ostensibly to reassure them that he was on top of things and so could host a meeting with the mine, that "We'll wait and see what happens when it's finished". Lovely piece of precaution that, eh? 

Suck it and see planning from the Mayor. Ain't that wonderful?)

And so the "Responsible Authority" hand-balled the blame responsibility to EPA - who were MIA as per usual - and approved the application for development.

Not surprisingly, this was far from an ideal situation in the eyes of the concerned Costerfield community, and so an appeal to the decision was taken to the Victorian Civil and Administrative Tribunal (VCAT). That body reviewed the application and found cause to impose 29 further conditions on the CoGB-approved permit. Twenty-nine...

In their ruling the Members made specific and direct reference to the Precautionary Principle and attributed its application to the mandating of increased permeability requirements for the Splitters Creek Facility's clay liner; as well as the addition of an HDPE liner to further ameliorate the possibility of seepage of toxic groundwater.

By so doing, VCAT brought the Facility's permeability requirements (almost) into line with South Australian and Western Australian standards, thereby exceeding Victoria's outdated standards. The DPI standard originally applied to Splitters Creek dates from 2004, although this blog has shown that this standard was actually a downgrading of requirements from the 1996 permit for the mine's then owners.

Standards were 'restored' to those that had been extant nearly twenty years ago. Two decades of potentially dangerous under-regulation...

Residents were heartened by the seriousness with which their concerns were met and addressed by the VCAT Members. Residents were confident that, even if the facility were to proceed, it would now do so under much stricter and cautious (precautionary) conditions.

Twenty-nine conditions represent improvements that had been overlooked by Council and the Regulators because they were ignorant of their responsibilities. 

Council seemed to take its now manifestly laughable ignorance regarding mining regulations to heart and so when an application was received for the lifting of the walls of two further evaporative dams, it all but admitted its own inadequacy and sent the application to VCAT without making any decision at all. This, in effect took the right of immediate appeal out of residents' hands. A denial of the democratic process. VCAT is damned expensive.

But this hammered home the point to residents that the Councillors and Council of the City of Greater Bendigo are too ill-informed or deliberately un-informed to be charged with the responsibility for any decision-making regarding mining infrastructure. Any at all.

Twenty-nine extra conditions means twenty-nine important matters that improved on the 'work' of CoGB . 

But at least VCAT had noticed and, well, had made them conditions of the construction.

(condition, noun - a situation that must exist before something else is possible or permitted.)

***

Residents were hopeful that this was a sign that things were changing and that at last the rules were going to be followed. Hell, they'd had to do so much rule-following themselves that a number of community members are out of pocket by very substantial amounts of money. And time and effort don't come cheap for anyone either. These are farmers trying to make a living.

And then dust-generating work commenced on Lot 1 South Costerfield-Graytown Rd in contravention of the VCAT decision and without a single word of notice to any residents. And DSDBI's Ms Kylie White displayed a decided lack of knowledge of the situation in a reply to residents' concerns about this transgression.

And then work commenced on Lot 2 after just two days notice to residents, on a Public Holiday and the morning after the death of a long-time Costerfield resident that the "community engagement processes" of neither Council nor the mineral extractive industry had managed to pick up, and no one was available to address the noise and dust issues that ensued because they were getting pissed at the races in Bendigo... and the then Mayor Cr Barry Lyons visited the mine and then Splitters Creek and declared everything to be hunky dory - but he couldn't remember exactly which day he'd visited and he didn't bother travelling two hundred metres over the road to talk to the community members most directly affected. Marginalised.
 
And all this was done despite the fact that no one had bothered to get baseline figures from the neighbouring properties. A condition of the VCAT decision.

(condition, noun - a situation that must exist before something else is possible or permitted.)

Monitoring has never been declined by any residents. Never. They have demanded that it be done thoroughly and rigorously. And why wouldn't they? These are farmers, both professional and hobby, producing food for people, for themselves to eat. And this is their home for goodness' sake.

And it wouldn't appear, what with the Golder Desktop Report (see Appendix E) and its 12 Chemicals of Interest (CoI) for the 'next phase of works', which are now proposed to be analysed to varying degrees across six parameters, that they have been in the least misguided in the depth of their concerns:

Oooo look... is that Manganese in there...?

And they have actually been supported, too (! Well, to an extent) by Mr Colin Thornton who advised Mandalay Resources at the November ERC Meeting (from which residents, including Ms King, were ejected by the mine... no support from Council or anyone else) that the company may have to sample outside of the prescriptions of the Work Plan.

Still no baseline figures for water and soil testing were taken.

(It is not as if the testing and monitoring that takes place at the Costerfield Operations can be boasted about, or even deemed adequate, anyway. For example, it is only because residents demanded testing (we were being listened to at last because of issues raised on this blog... imagine that; listening to the locals) that anyone discovered that there is Manganese in the water that flows down the Wappentake Creek. No one - not EPA, not DSDBI, not Mandalay, not CoGB - had even bothered to look. (There's been so much not looking going on... and it's still going on... ) And lo and behold there it was.... and didn't that help explain a few things about the creek....

We feel justified in referring authoritatively to these results for Manganese as they align very well with the speculations of Golder Associates in its Desktop Review, provided for the regulators. Our identification of Tin Pot Gully as a potential source of legacy contamination was arrived at completely independently of Golder's research [see pp. 27-28 of the Golder document here... note the cheeky copyrighting of material produced by the Geological Survey of Victoria on behalf of the Victorian people and currently held in the National Library of Australia. Someone MS Painted some arrows and text on so Golder now own it!].


Such a convergence of opinion should provide some sort of reality check for the Regulators... the community has long been sidelined from participation in this and other projects, and yet the community's own research - should they have had to do this, really? - appears to be in many ways on a par with the 'desktop' investigations conducted by a multi-national consultancy firm of experts being paid... how much of our money?)

And then construction commenced at Splitters Creek and noise monitoring of a sort was undertaken... in a manner that contravened not only the endorsed Work Plan for the site, and the Permit, but also environmental noise monitoring standards required by the regulations. This breach was sanctioned and supervised - personally overseen - by DSDBI and its officers. (A year earlier DSDBI's Colin Thornton had all but admitted failure in the application of noise regulations in Costerfield and, at a community meeting at the Hall offered to hand over future noise monitoring to EPA. Didn't happen obviously... there are still some outstanding noise complaints to be dealt with by EPA. They know my email address...)


And then a pipeline for the transport of heavy metal-laden water through Crown Land and beside a public road reserve had to be sent under that road, so the road needed to be closed. And notice needed to be given to locals. And CoGB regulations governing this were breached.

And the Permit and Work Plan were so badly considered that these overly-pliable Public Servants whose names keep popping up again and again throughout this decade-long chronicle of incompetence, forgot about the dusty roads that they'd been permitting to be sprayed with contaminated water for years!!  

Which in and of itself goes a long way to confirming residents' suspicions that the road-watering initiatives in previous years were aimed wholly at assisting the mine in disposing of its excess groundwater rather than because of any concern for the dusty Costerfield roads and the health and well-being of Costerfield residents. That's why unused roads were watered up to three times a day.

And so back to the dust that was everywhere and the insane truck drivers hammering incessantly down the roads. And then they even forgot that it rains in Costerfield, too.

They forgot about the "irksome influx of meteoric water"!! 

And when the dust on the roads was brought to their attention, CoGB and DSDBI decided that it was okay for the mine to spray contaminated water about the district again (they'd been doing it for years in any case) and kill native vegetation. And Ms Prue Mansfield didn't even know where the water came from (but she did, really). And we haven't seen the EPA's test results on this water. Though they did manage to drive past the pollution and serve intimidatory notices on a farmer for composting. That Mr Leask is recovering well, is great news.

And still no baseline figures... and that's now impossible because the facility has been built. But monitoring has NEVER been declined. Don't let anyone - CoGB, DETJTR, EPA or anyone else - tell you otherwise. The document trail is decisive... come and get your samples when you decide to do it properly and thoroughly...to World's Best Practice.

The mine was advised it may have to sample outside the Work Plan remember. And they haven't... so whose fault is that, Colin?

It's almost as if all of the these transgressions are deliberate. A way to rile certain members of the community - piece by annoyingly encroaching piece - and get a reaction. An "unreasonable" reaction even...

(Unreasonable? No! The very residents who expended time and money to have themselves considered during all this mess? That couldn't happen, could it?)

And according to VCAT, the commissioning of the Splitters Creek Evaporative Facility cannot be completed without Council being "satisfied" with the testing and monitoring... and there's been precious little of that, has there Council? But the mine will want it commissioned... so...

Mr Kilian? Mayor Cox? Ms Mansfield? Mr Thornton?

How are you going to manipulate the system this time? 

How is the community to be run roughshod over this time?

Who's going to be cast as the villains in 2015?

Full and complete sampling and testing. That is what is required in Costerfield. The whole of Costerfield.

Everyone is watching you CoGB, DEDJTR, EPA... we're all watching. See if you can get together and do the right thing for a change. It's easy really. Just start following the instructions that are explicitly laid down in the VCAT Decision... to the letter... follow the regulations...

... apparently we have to.

Someone's going to have to make a decision and start sorting this mess out.  And how about soon... for a change?

A lot of people appear to be sitting on the fence regarding Costerfield... that's a precarious position... the fences out there aren't made to spec...