The submission of FOT is that from the moment the 'Industrial Land Committee'
of Cessnock Council selected the Tomalpin site for industrial purposes
there has been neither a comparative nor an objective assessment of the
site.
The 'whole of Government approach' adopted by the Premiers Department
in December 1998 has effectively locked the state Government into rezoning
the site prior to there being an understanding of the serious constraints
which affected the land. We believe the Premiers Department was reckless
in adopting a 'whole of government approach' at such an early time.
In particular the ecological value of the site has not been understood
or properly taken in to account by either Cessnock Council or the State
Government.
The site has numerous environment problems apart from the ecological
ones. The site is difficult to service with roads and water.
We believe constant pressure has been placed on State Government Departments,
particularly the National Parks and Wildlife Service, to 'make the industrial
estate happen'.
We believe the Objectives of the Environmental Planning and Assessment
Act NSW 1979 have not been adhered to by either Cessnock Council or the
State Government. The land was rezoned without reference to alternatives
and despite it being known that potentially suitable land was available
nearby.
The only assessment of the public and Agency submissions was conducted
by a Consultant Planner who was paid for by the Developer and contractually
obliged to recommend the rezoning proceed
The community of the Hunter Valley and NSW have ended up with the State's
biggest industrial estate located in one of the least suitable locations.
We believe investment will be hard to attract and NSW will lose businesses
that locate elsewhere because of the poor choice of location and the constraints
on the land. In our view the current offer from HEZ offering Real Estate
Salespeople a Monaro or a Mercedes (on top of existing commission rates)
if they can lease 10,000 or 20,000 m2 in Tomalpin is an indication that
the site is difficult to sell (offer attached).
Shortly after the rezoning occurred the developer made a large donation
($100,000) to the Australian Labor Party.
1. The GPSC No 5 recommend to the Department of Infrastructure Planning
and Natural Resources (DIPNR) that the Hunter Employment Zone be rezoned
to establish 200ha of industrial land with the surrounding land being
dedicated as National Park in accordance with the environmental value
of the area.
This outcome would produce a win/win for the National, State and local
environment as well as serve to create economic and employment growth
2. If the above option is not thought viable then we ask tht th GPSC
No 5 recommend to DIPNR and Cessnock Council that no development be approved
on the Tomalpin site until a detailed comparative Lower Hunter Study is
conducted by the department which seeks to establish the most suitable
location for large scale industry.
· has more threatened species than any other location on the floor of
the Hunter Valley (31, only Barrington Tops National Park has more).
· has been called the most important Spotted Gum habitat in Australia
for the Nationally Endangered Swift Parrot.
· has been declared a Mine Subsidence Zone.
· is difficult to service with roads.
· Is difficult to service with water and has no water or waste water
strategy in place.
· has been labeled as 'unparalleled' in the number Eucalyptus species
present on site.
· contains a possible further two new species of Eucalypts previously
unknown to science.
· is a last Hunter refuge for Woodland birds which re extremely sensitive
to fragmentation
· is the largest remaining block of bushland on the floor of the Hunter
Valley.
· within 5 minutes drive there are large areas of degraded ex open cut
coal mining land that could be available for industrial development.
· The initial Council Project Manager (joint) for the rezoning was working
for the Developer at the same time as being a Project Manager for the
rezoning. Council did not pay this Consultant (Executive Planner's Brief
p.2, CCC corres. to FOT 2/2/2001)
· The Dept. of Planning approved the plan for public exhibition despite
a search for alternative sites in the lower Hunter Valley never being
undertaken.
· Council engaged a Consultant to get the land rezoned in accordance
with the timeline for the project.
· This Consultant, who was obliged to get the land rezoned, assessed
all public submissions and negotiated with State Government Agencies.
· Cessnock Council didn't inform the public that a Consultant who could
not recommend against the rezoning was assessing their submissions. This
resulted in anyone objecting to the industrial estate not getting a fair
hearing.
· Cessnock Councilors were not informed that the report they received
could only recommend for the rezoning
· FOT can't find any evidence the State Government has done an environmental
assessment.
· FOT can't find any evidence of a summary report etc. of the State Government
having read the public submissions.
· It appears the recommendations of a Consultant paid for by the Developer
and engaged by Cessnock Council specifically to get the land rezoned have
simply been adopted by the State Government.
· There is some evidence that a number of submissions in favour of the
rezoning were forged. It isn't known if these forgeries were part of an
organised pattern. There has not been an attempt by either Council of
DIPNR to find out if there was any pattern to these forgeries.
· It appears that constant pressure has been placed on the NPWS not to
hold the development up and to 'ensure this development proceeds'.
· The Minister was told in the final briefing he received that there
was a major industry (Intec) about to develop on the site, investing $300million
and employing 280 people. After 2 & ½ years there is no sign of this industry.
Where are they?
· Five weeks after the Estate was rezoned by the Minister for Planning
the developer made a $100,000 donation to the ALP on May 7th 2002.
In summary FOT believe The Premiers Department and Cessnock Council made
up their minds to rezone Tomalpin for industrial use years ago and have
not taken into account the environmental and ecological constraints on
the land as these constraints became known.
HEZ is a conservation outcome - 70% of the land is zoned for conservation.
· False. The developers include already-existing National Park
in the 70% figure and claim they have set it aside for conservation.
Even the Conservation zone that has been created as a result of the
rezoning can be developed, house and roads can be built on it and open
cut coal mining can take place. More accurately 400ha of State Forest
will be converted to National Park and 1765 ha will be zoned for development,
therefore 81.5 % of the affected land has been zoned for development.
· No site has been more extensively or exhaustively surveyed. There
have been over 7 years of studies etc.
· The Developer has paid for all studies and no ecological study has
been asked to evaluate Tomalpin as compared to other possible locations.
There is very strong evidence from the Swift Parrot Recovery Team, from
botanist Stephen Bell, from North East Forest Alliance, from the Developer's
own Species Impact Statements that the site is ecologically valuable
and unsuitable for large scale industrial development.
· The Environmental Constraints Master Plan will provide unequaled
knowledge and a comprehensive strategy to protect threatened species.
This has surveyed all significant environmental features on a 150m x
150m grid pattern providing a detailed knowledge that will not require
further studies for future development. i.e. No further lodgment of
Species Impact statements and 'eight part tests'.
· The ECMP may contain a lot of detail regarding the location of threatened
species and significant ecological features however this is worthless
if the Developer can show no strategy to protect those significant ecological
features and threatened species. The ECMP is only as good as the data
it contains. E.g. it does not record all the trees recommended by the
Swift Parrot Report, it does not record all the trees suggested in the
Habitat Management Strategy (adopted by Cessnock Council for the estate)
.In fact it seems that the Developer has refused to make any commitment
to preserving habitat at all (NPWS foi) and is advertising quite intensive
development (Promotional brochure).
· That HEZ have a significant number of parties interested in developing
on site.
· No industry has ever come forward publicly and said they were interested
in HEZ. HEZ should name these interested parties so they can be verified.
We believe HEZ lobbied to have the rezoning expedited in 2001/2002 using
the information that a large company was interested in locating there.
There is no sign of this large company two and a half years later. In
all our FOI searches we have not found any letterhead from this company
or any other.
· HEZ have conducted a survey of public opinion and over 70% of
residents strongly support the project.
· Interviewees were asked if they supported a 'Conservation Lands project'.
The survey was obviously biased.
TERMS OF REFERENCE
That the General Purpose Standing Committee No.5 inquire into and report
on the environmental assessment process associated with the Tomalpin
woodlands and the Hunter Economic Zone industrial development, and in
particular:
(a) the actions of the Director General and other senior officers of
the NSW Premier's Department with particular reference to correspondence
and interaction between the Premier's Department and the Parks Services
Division of the Department of Environment and Conservation (formerly
the National Parks and Wildlife Service) in the process: and
(b) the role of the Parks Services Division of the Department of Environment
and Conservation (formerly the National Parks and Wildlife Service)
in the process.
1) Preamble - 'the environmental assessment process'.
1.1) Friends of Tumblebee (FOT) believe the environmental assessment
process has been characterised by:
a) a pre-determined decision made by the Premiers Department and Cessnock
Council with regard to establishing an industrial estate in the Tomalpin
Woodlands.
b) a failure to understand the importance of the Tomalpin site in ecological
terms. The Agency that should have informed the Government (NPWS) was
put under pressure not to object to the estate.
c) a deliberate process implemented by Cessnock Council to ensure the
industrial estate was recommended for rezoning. Submissions objecting
to the rezoning could not be considered.
d) a failure of DIPNR to assess the public submissions at all and its
abandonment to the contracted Consultant the task of negotiating with
the relevant State Agencies.
1.2) Cessnock Council set up the 'Industrial Land Working Committee'
in 1997 to identify potential areas for future industrial development.
This followed a long period of community unrest after Council approved
a Dross Recycling plant adjacent to urban Kurri Kurri.
FOT understand that the Committee consisted of a number of people over
time and included the involvement of Ben Chard (Premiers Department)
and Toby Thomas from Kurri Chamber of Commerce. This committee discussed
three Coal and Allied owned sites (Mulbring, Tomalpin and Aberdare North)
in the Cessnock LGA. This small group of people recommended the Tomalpin
site, fearing a site nearer Cessnock would be offensive to the Vineyards
and another site near Mulbring as possibly impacting on future tourism
potential. (Minutes available from Cessnock Council, Industrial Land
Working Committee)
In 1998 Council commissioned the 'Hassel Report' authored by Phillip
O'Neil from the University of Newcastle. This report stated that there
was an opportunity to establish a site in which a few large industries
could establish in isolation from urban development. This report recommended
further studies be done.
In August 1998 Cessnock City Council adopted the Hassell report. The
Hassell Report was not comparative and did not look at any other possible
locations in the Hunter Valley. It was an 'opportunity appraisal'.
The Hassell report did not make any assessment of ecological or other
environmental factors. The Hassell report is the only report prior to
the rezoning that was not commissioned and paid for by the Developer.
In December 1998 (DIPNR Tomalpin Event Chronology foi doc. 143)
an initial meeting of Govt Agencies was held by the Premiers department
to establish a 'whole of Government' approach.
There were no direction given by the Minister for Planning under s.57
of the EP&A Act. for the Hassell report or subsequent reports. Given
the high level and early involvement of the Premiers Department it is
surprising that no efforts were made to ascertain whether or not alternative
uses or sites were required investigation.
A S.57 direction from the Minister would have covered these areas of
inquiry. When asked why no S.57 studies had been asked for, Shane Kempnich
from DIPNR (then Planning) replied that ' the developers studies had
already been presented' implying that these were adequate ( verbal -
D. Planning meeting with Friends of Tumblebee 6/2/02). However the Dept.
Planning and Premiers Department were well aware of, and indeed were
part of, the decision to create an industrial estate at Tomalpin (December
1998) before any environmental reports were ever undertaken by the developer.
If there had been an independent study conducted via S.57 the Land
and Environment Court has decided (Devon v Lake Macquarie Municpal Council,
1984) it would have had to consider alternative uses for the land other
than the one specifically proposed.
If there had been a S.57 study the context of the flora and Fauna Survey
would have been markedly different. Had a S.57 study been done the Flora
and Fauna would have had the ability to consider alternate uses for
the site. The Court noted in Burns Philp Trustees Co Ltd. v Wollongong
City Council (1983) 49LGRA 420 that 'a consultant who is responsible
to, and reporting only to, the Council is much more likely objectively
to approach the question than a consultant who is dependent upon the
developer.' (Env. Law Handbook 1999).
FOT believe Cessnock Council and the Premiers Department failure to
consider alternate uses or sites indicates a predetermined position
from these authorities from an early period. In our opinion the adoption
of a 'whole of government approach' in December 1998 prior to any environmental
studies being undertaken constitutes a reckless approach by the State
Government. The 'whole of Government approach' allows the state Govt.
to override the concerns of any State Agency in favour of a so-called
team approach. The 'whole of Government approach' also seems to infer
some sought of endorsement of the project prior to the public and other
interested parties being able to view the proposal and have input via
the EP&A Act.
We repeat our concern that the Premiers Department was reckless and
irresponsible when establishing a 'whole of Government approach' in
December 1998 prior to any single environmental evaluation of the site
and armed only with an 'Opportunity Appraisal', ie. an economic rationale.
This approach is contrary to the objectives of the EP&A Act, which
seeks to foster orderly planning outcomes which take into account both
environmental and economic considerations.
FOT also believe that it was known as early as 2000/2001 that Ashtonfields
Management P/L have approached Cessnock Council to generally discuss
the future of approximately 2000ha of degraded land between Kurri and
Maitland (pers. com James Ryan). The site, known as the Bloomfield Mine,
currently has an open cut mining operation continuing in a small area.
The Bloomfield site has been identified by the Maitland Industrial
Land Study (February 2002) and the Draft Thornton to Killingworth Sub
Regional Strategy (July 2003) as a potential 'brownfields' site for
industrial use.
As the knowledge grew about the ecological constraints present at Tomalpin
it is surprising that more effort (or at least some effort) wasn't made
to encourage investigations of the Bloomfield site. The question must
be asked why both Cesnock Council did not respond to overtures from
the Bloomfield site in 2001 - which is prior to the rezoning of Tomalpin.
The conclusion for FOT is that Cessnock Council and the Premiers Department
were 'locked in' and had predetermined that Tomalpin was the chosen
site.
The clearest example of the 'whole of Government approach' locking
the planning authorities into a pre-determined outcome is the Cessnock
Council report (Corporate & Regulatory Services Rep 153/2002 Nov. 6th
2002). This report considers public and State Agency submissions on
the Development Control Plan and 'Environmental Management Strategies'.
The DCP and Management Strategies were envisaged to provide a finer
level of detail of environmental controls on the site.
The report considers the submission from the Swift Parrot Recovery
Team. This submission lists the 4(h) zone as the most important Spotted
Gum site for Swift Parrots in Australia and one of the most important
sites in NSW (Saunders 2002, Assessment of Swift Parrot Sites near Cessnock,
Lower Hunter Valley NSW). The SPRT submitted that they were opposed
to the development of the HEZ and recommended that all Spotted Gum Ironbark
forest be conserved (p.9). It goes on to say that if development does
proceed 75% of the habitat in the 4(h) zone should be conserved, 60%
of it in a contiguous configuration (p10).
The Council report of November 6th 2002 says:
'Council and the developer understand that habitat for endangered
species must be protected, but 75% retention in the 4(h) zone would
preclude the HEZ development. This is not in accordance with
State Government priorities for the site and the "whole of Government"
emphasis on employment generation on this site.'
From this comment it can be seen that, despite the well researched
and scientifically based report provided by the Swift Parrot Recovery
Team, (Australia's' pre-eminent authority on Swift Parrot conservation)
and their very powerful submission of the importance of this site to
a Nationally Endangered species, Cessnock Councils' interpretation of
the 'whole of Government approach' prioritising the site for employment
generation justified them in overriding real concerns of species preservation.
In this report Cessnock Council doesn't try to dispute the validity
of the Swift Parrot report, it simply says it is not in accordance with
State Government priorities for the site. We can infer from this attitude
that it would be hard to conceive of any argument or environmental constraint
which could change the State Governments attitude to pressing ahead
with creating an industrial estate at Tomalpin. In other words their
minds were already made up.
Whilst the Swift Parrot Teams' Report came after the land was rezoned
for industrial use there was still an opportunity via input to the DCP
and Environmental Management Strategies to ameliorate the impact of
the proposed industrial development. FOT believe that the 'whole of
Government approach' applied before and after the rezoning of the Tomalpin
Woodlands.
Cessnock Council also wrote to the Premiers Department on 22nd October
2002 complaining that individual NPWS Officers' advice regarding the
Swift Parrot Report and Aboriginal Archaeological issues did not reflect
'the 'whole of Government' approach and attitude to this important,
employment generating development;' The letter goes on to claim that
the individual NPWS Officers advice did not reflect 'advice from very
senior NPWS Officers that there will be no impediment to the successful
completion of the project from the Service.' (The result of this letter
and a visit by the Developer to the Premiers Department resulted in
a letter from Director Col Gellatly to the Director General of National
Parks - discussion to follow)
Therefore it is possible to draw a line from December 1998 through
to November 2002 during which a Premiers Department endorsed 'whole
of Government approach' applied to the rezoning and development of the
Tomalpin Woodlands. This 'whole of Government approach' seems to be
used to justify the ignoring of powerful evidence of adverse impacts
on endangered species and to complain of NPWS Officers acting in accordance
with their Governing Legislation. It also appears to FOT that the 'whole
of Government approach' also precluded Cessnock council and the Premiers
Department considering alternative sites despite approaches being mad
by other land owners.
The existence of the 'whole of Government approach' with regard to
Tomalpin and the use of this 'approach' by Council to override valid
concerns indicate to FOT that both the Premiers Department and Cessnock
Council had a pre-determined position on Tomalpin since 1998. This pre-determined
position was irresponsible, not in keeping with the objectives of the
EP&A Act and led to a lack of recognition of the reality of the constraints
on the Tomalpin site.
1.2) A failure to understand the importance of the Tomalpin
site ecologically.
1.2.1 There has been a general failure to recognise the ecological
values of the site. The Tomalpin area is the largest remnant of vegetation
left on the Hunter Valley floor. At 3112 ha it is large enough to support
almost a full suite of biodiversity. An indicator of the range of biodiversity
present is the presence of all the large predatory owls (Masked and
Powerful) which typically need large ranges over which to hunt small
mammals. These small mammals (usually possums) in turn need a range
of habitats to forage in.
The Tomalpin site is made up of four main forest types (Bell 2004).
Lower Hunter Ironbark Spotted Gum
Hunter Lowland Redgum
Kurri Sand Swamp Woodland
Central Hunter Riparian Woodland
The Tomalpin site contains 31 species listed as threatened under the
NSW Threatened Species Act 1995. A list of the current record of threatened
species is included in the attachments. There is no known location in
the Hunter Valley with more threatened species present other than the
Barrington Tops National Park, which has 36.
Recently two new species of Eucalypt, previously unrecorded, were identified
by Bell (Bell 2004) as occurring in the site - and one of these will
probably occur within the 4(h) industrial zone.
Bell (2004) has described the site as 'unparalleled in the diversity
of eucalypts presently documented within areas less than 15000 ha in
size.' Of the 262 species of Eucalypt recorded in NSW 29, over 10%,
occur in the Tomalpin area.
The National Swift Parrot Recovery Team has said 'The Swift Parrot
Recovery Team (SPRT) is concerned about the fate of habitats within
the HEZ given that it is currently the most significant Spotted Gum
Corymbia maculata site for Swift Parrots in Australia.'(SPRT Oct. 2002
letter to Cessnock Council GM)
The SPRT (Assessment of Swift parrot habitat Sites near Cessnock, Lower
Hunter Valley Region, NSW. October 2002) that they were opposed to the
development of the HEZ and recommended that all Spotted Gum Ironbark
forest be conserved (p.9).
Following the Hassell 'Opportunity Appraisal' Harper Somers (on behalf
of the developer) commissioned Ecotone P/L to conduct a Flora and Fauna
Survey (Ecotone 1999) of the site.
The Ecotone Report concluded that 5 threatened species had been identified
in the study area. The area was regionally significant and that industrial
development should be restricted to roughly the area zoned 4(h) at present.
The Ecotone report spent a minimal amount of time and conducted very
few surveys in the proposed industrial area. For example approx. two
hours were spent on spotlighting surveys (Ecotone 1999).
At the time of the Ecotone report neither the Kurri Sand Swamp Woodland
nor the Hunter Lowland Redgum Forest were listed as Endangered Ecological
Communities.Ecotone did recognise the Hunter Lowland Redgum as worthy
of conservation. It did not recognise the KSSW as worthy of conservation.
Ecotone 1999 also did not recognise that Lower Hunter Spotted Gum Ironbark
Forest as being poorly conserved. The Lower Hunter Spotted Gum Ironbark
forest is generally considered to be poorly conserved due to much of
its extent having been cleared in the Lower Hunter Valley.
The Ecotone report did note that 5 threatened species occurred on site
and that habitat was present on site suitable for a further 21 threatened
fauna species . 31 Threatened species are now known to occur on the
site.
The Department of Planning, Cessnock Council and the NPWS were also
in receipt of a critique of the Ecotone report by the North East Forest
Alliance (NEFA). An extract of NEFA's position paper authored by Barrie
Griffiths is as follows:
Flora and Fauna Values
A review of CRA data has found that this site is the most
significant area of unprotected high conservation value forest remaining
in the Lower Hunter Region. (NEFA, 2000).
Extremely poorly reserved forest
types
Firstly, the area is of high conservation value simply
because of its size as an almost entirely forested area. Moreover the
predominant forest types, Spotted Gum/Ironbark and Forest Red Gum/Rough-barked
Apple/Grey Gum are of very limited extent and extremely poorly reserved
(<10% existing extent, CRA November 1998) in the Lower North
East CRA Region, and the most commonly occurring forest type has been
assessed as being in good to very good condition, with high floristic
and structural diversity including old trees and hollows, despite evidence
of abuse (Flora and Fauna Report, Ecotone, page 21)
Cessnock Council are participants along with 6 other Councils
in the Lower Hunter/Central Coast Regional Biodiversity Strategy Study,
which recently completed its mapping project. The Study is to form the
basis of a Regional Biodiversity Action Plan, in fulfillment of obligations
under the NSW Biodiversity Strategy and the Local Government
Act. Within their Study Area, percent reserved of identified vegetation
communities on the Tomalpin site is as follows: MU17, Lower Hunter Spotted
Gum-Ironbark, 6% reserved; MU19, Lowland Forest Red Gum, 2% reserved;
MU35, Kurri Kurri Swamp Forest (Angophora/Euc. parramatensis ssp.decadens
woodland) 7% reserved.
Endangered Ecological Communities.
The MU35 woodland community has been gazetted by the NSW Scientific
Committee as an endangered ecological community, and the Committee
is currently considering a nomination of the other two major forest
communities for listing as endangered also.
Rare and threatened plants.
The threatened species Eucalytptus parramattensis subsp. decadens
is at the known south-western limit of distribution on this site, where
nine scattered populations have been identified in the Flora Study.
The species is very sensitive to the impacts of altered hydrological
regime, and in many areas it is not regenerating, probably because of
fire impacts. Unmapped occurrences occur in areas zoned for industry.
The consultants recommend all stands be protected, and buffers and green
belts linking populations should be provided, and further survey and
mapping be undertaken. Grevillea parviflora subsp. parviflora
is a newly listed threatened species occurring on the site with a very
restricted distribution. Populations of two rare and poorly known species
with a range of less than 100 km, Macrozamia flexuosa and Grevillea
montana occur on the site. Macrozamia flexuosa is not thought
to be conserved elsewhere. Grevillea montana is recorded as protected
only in Wollemi N.P., where the population size is unknown. Eucalytptus
parramattensis subsp. decadens, Grevillea parviflora subsp. parviflora,
and Macrozamia flexuosa are also nationally-listed species. Other
rare plants occur or are predicted to occur on the site, most notably
orchids, for which the area is renowned. (Ecotone page 23). The
consultants did not conduct a survey for orchids.
Threatened Fauna. The following fourteen threatened
species have been recorded on the site - all records are from 1998 -
2000. (Figures in brackets refer to percentage of target area for reservation
achieved in the forest reserve decision of December 1998, for populations
identified in the Lower Hunter. It is important to understand that a
figure of 100% constitutes the minimum area considered by expert panels
to be required for the long-term survival of the species):
Yellow-bellied Glider (9), Squirrel Glider (15), Koala
(30), Large Bent-wing Bat, Eastern False (Great) Pipistrelle (3), Greater
Broad-nosed Bat (28), Black-breasted Buzzard, Square-tailed Kite (25),
Glossy-black Cockatoo (target achieved), Masked Owl (21), Turquoise
Parrot (11), Powerful Owl (69), Regent Honeyeater (5), Swift Parrot
(34) - last two nationally endangered).
Repeated records of Swift Parrot, Regent Honeyeater, Turquoise
Parrot and Yellow-tufted Honeyeater over recent years are especially
significant, the most exciting being sightings of hundreds of Swift
Parrots between May and August 2000. There are thought to be less than
1,000 pairs of this species, which the Scientific Committee considers
is in imminent danger of extinction in NSW.
The following additional threatened species are predicted
to occur on the site by the consultants, Ecotone: Brush-tailed Phascogale
(4), Yellow-bellied Sheathtail Bat, Eastern Little Mastiff Bat, (66)
Little Bent-wing Bat, Large-footed Myotis (43), Pale-headed Snake (5),
Barking Owl (16), Painted Honeyeater (12). Ecotone's assessment is that
the impacts of large-scale industrial development would be unacceptable
for all these threatened species (see Table 26, pages 71-74).
The Ecotone Report concludes that development of
the site would "probably remove and minimise areas of critical habitat
for threatened species... impacts would be within acceptable limits
for only 5 of the 33 subject species" (page 74); and that:
"Development of the majority of the site could be seen
to be inappropriate given the ecological significance of the study area",
and that application of the significant impact test would result in
the proposal failing the test with respect to "most potential subject
species" (page 75). The great majority of recorded and predicted threatened
species achieved less than 50% of target for reservation in the CRA
decision., and only two of the fourteen recorded threatened fauna
species achieved more than 35% of target in the CRA reserves decision
(CRA, December 1998, Griffiths, 1999).
It is especially notable that five of the eight threatened
bird species at Tomalpin, including both nationally-endangered species,
are particularly dependent on resources provided by the Lower Hunter
Spotted Gum-Ironbark community - the community which will be most severely
affected by this development. NEFA, Barrie Griffiths, 2000.
FOT conclude that both Cessnock Council and the State
Government were made aware of the ecological importance of the site
at a local, State and National level. Despite the mounting ecological
cocerns there was no attempt to consider alternative sites.
1.2.2 State Government/Cessnock Council Response
to Ecological Concerns.
The Cessnock Council/State Government response. to the
ecological concerns raised by the local community and Conservation organisations
was to create a Draft LEP (the one subsequently adopted which) dropped
attempts to include light industrial areas and rural residential subdivisions.
The LEP adopted increased the amount of land ( originally
730 ha, now 870ha) to be made available for heavy/large scale industry
and adopted a so called 'conservation zone'. The HEZ LEP has been claimed
as a 'conservation outcome' by HEZ P/L that has the endorsement of the
NPWS (Harper Somers O'Sullivan, Species Impact Statement, Stage 1 Road
Alignment August 2002.)
HEZ P/L claim that 70% of the site has been rezoned for
conservation (Advertisement 3rd March 2004, Cessnock Advertiser) and
that 'Plant and animal species found on the estate lands are also
found in the conservation lands ensuring bio-diversity.' This advertisement
carries endorsements from Premier Bob Carr, Deputy Director Dept. of
Environment and Conservation, National Parks and Wildlife Services,
Simon Smith; Cessnock Mayor John Clarence and Hon. Milton Morris AO.
In reality the claim that 70% of the Study area has been
rezoned for conservation is playing on semantics and misleading to the
public. Part of the Study area, 870ha, had already been declared National
Park in 1998 as part of the Regional Forest Agreements process.
It is more accurate to say that of the 2165 ha that were
not previously existing National Park, 400ha of State Forest would be
converted to National Park leaving 1765 ha zoned for development i.e.
81.5% of land that has been reclassified.
The Conservation Zone.
FOT submit that the Conservation Zone (consisting of 855ha)
is not really a conservation zone. Under the LEP (Cessnock LEP 1989
s.59 and s.60) it is clear that the 7(b) conservation zone can be sold
for rural properties complete with a dwelling entitlement and subdivided
to a minimum of 25ha (along zone boundaries) which is less than the
40ha minimum required under the previous Rural 1(a) zoning.
In addition coal mining is specifically permitted (s.60)
in the 7(b) zone which leaves open the prospect of an open cut coal
mine operating in the so called conservation zone. It is an area which
is well known for shallow coal seams.
59 Hunter Employment Zone--Dwelling-houses within Zone
No 7 (b)
(1) This clause applies to land that is shown edged heavy black on
the map marked " Cessnock Local Environmental Plan 1989 (Amendment
No 60)--Hunter Employment Zone " and that is within Zone No 7
(b).
(2) Despite clause 17B, consent may be granted to development of
land to which this clause applies for the purposes of one, but not
more than one, dwelling-house, but only if the land has an area of
not less than 25 hectares and there is no dwelling-house on the land.
60 Permissibility of mining
(1) This clause applies to land that is shown edged heavy black on
the map marked "Cessnock Local Environmental Plan 1989 (Amendment
No 60)--Hunter Employment Zone " and that is within Zone No 4
(h) or 7 (b).
(2) Despite clause 9, consent may be granted to development on the
land to which this clause applies for the purposes of coal mining.
Botanist Stephen Bell who was engaged by the Developer to conduct a
Flora Study states that parts of the 7(b) land should be added to Werakata
National Park to be protected because of their botanical value (p.30
The Vegetation of the Hunter Economic Zone, January 2004). This recommendation
is a recognition that the 7(b) zone as currently constituted does not
protect vegetation within it and cannot be counted as part of a 'conservation
outcome'.
The developer seems to be now acknowledging the lack of protection
offered by the 7(b) zone by suggesting in a current SIS (p.87, Harper
Somers O'Sullivan, HEZ Spine Road Stage C, SIS, February 2004) that
removing the dwelling entitlement for the 7(b) lands may be considered
as a 'compensatory strategy'.
Cessnock Council Executive Planner, Neil Selmon, also wrote to Mindaribba
Land Council suggesting that because of the reduction in lot size to
25ha there would still be some economic gain for the Land Council in
the 7(b) zoning (CCC to Mindaribba Land Council 7th March 2002).
Because of the provisions in the LEP regarding the 7(b) zone regarding
dwelling entitlements and coal mining activity FOT believe it is really
a development zone. Therefore 81.5% of available land has been rezoned
for development by the HEZ process. 400ha of State Forest has been converted
to National Park. Not a single hectare of private land or land claimable
under the NSW Land Rights Act has been set aside as National Park.
Attitude to Ecological Significance
At the time of rezoning the State Government and Cessnock Council failed
to deal with the issue of the Ironbark Spotted Gum Forest (and the threatened
species dependent on it) as listed by NEFA and satisfied themselves
with a phony 'conservation zone' that protected (or in this case didn't)
representative samples of vegetation.
One of the most telling or enlightening documents regarding the attitude
of both Cessnock Council and the Premiers Department is the correspondence
from the General Manger of Cessnock Council to the Premiers Department.
In this letter (CCC GM to Premiers 22nd October 2002) the General Manager
complains of the Swift Parrot Report;
i) The report was made available to local political and community
groups the same day that it was released to Council.
ii) The recommendations of the report appear to match the stated
sentiments of the political opponents of the HEZ project.
The GM claims in the letter to Premiers Department that if the 75%
habitat retention recommended by the SPRT were adopted then the proposal
(HEZ) 'as supported by the State Government and reflected in the
LEP gazetted in March this year would not proceed'. He goes on to
say 'there appears to be collusion amongst various groups intent
on impeding the project.'
What the Cessnock General Manager is saying is a) HEZ cannot proceed
if the SPRT report is adopted and b) he believes that a Federal Government
conservation initiative (The Swift Parrot Recovery Team) has colluded
with a community/political group (probably FOT) to produce a politically
motivated outcome.
An implication of this accusation is that the SPRT report is biased
and unscientific and therefore not worthy of implementation. The Council
letter, or any other document, does not try to present any reasoning
to explain why the SPRT report might be unscientific e.g. a flaw in
the methodology used etc. The argument is simply that the recommendations
of the SPRT Report for habitat conservation (75% of the 4(h) zone) result
in a superficially similar outcome to the very first submission made
by FOT in 2000 which sought to have a industrial estate limited to200ha.
FOT reject this accusation of collusion with the SPRT. In our opinion
none of the members of FOT knew of the existence of the Swift Parrot
Recovery Team prior to their engagement by the NPWS to conduct a study
of HEZ and the Lower Hunter Spotted Gum habitat. FOT certainly did not
attempt or presume to influence the conclusions of the report. It unlikely
that the SPRT would have been aware of the submission written by FOT
18 months earlier.
It is highly disturbing that Cessnock Council, the authority which
in practise conducted the environmental assessment of the Tomalpin site,
is openly and without scientific foundation discrediting the recommendations
of the Team charged with saving the Swift Parrot from extinction. Even
worse is the realisation that it is this letter from Cessnock Council
regarding the Swift Parrot Report which led to Col Gellatly to write
to NPWS director Brian Gilligan urging the Parks Service to 'ensure
there can be no credible claim that a large scale industrial park…is
put at risk.' (Gellatly ltr 12/11/02)
The community can have little confidence in the planning abilities
of Cessnock Council and the State Government when, as has occurred,
these Authorities are prepared to simply disbelieve and ignore the scientific
findings of a reputable Government conservation agency because the findings
did not match those authorities preconceived/predetermined wishes for
the area.
Other Environmental Concerns
Ecological concerns are not the only constraints applicable to the
Tomalpin site.
At a very early stage it became clear that the site is difficult to
service with water and waste water. In response to community concern
a study was commissioned from PPK to assess waste water options from
the site. This report concluded 'dry' industries locating in Tomalpin
would produce approz. 18,000 ep and that the Kurri Treatment Plant had
maximum spare capacity of 4000 ep (equivalent persons) which would be
consumed by natural growth of the Kurri residential population. Environmental
concerns would preclude further discharge into Swamp/Fisheries creek.
Other options included an onsite plants and pumping the waste water
to the Hunter River; creating a wood lot that would be bigger than the
industrial estate itself; using excess capacity at Farley (which would
impact on the capability of Rutherford (Maitland) Industrial Estate.
To this date FOT believe there is no approved plan to service Tomalpin
with waste water services.
The site is also difficult to service with roads. Cessnock Council
approved he rezoning recommendation be sent to the Minister whilst the
RTA was still formally objecting to the plan (RTA submission). The RTA
have expressed concerns that there is a single heavy vehicle entry to
the estate which will have a heavy impact on the local road network.
The RTA have said that at 40% development of the Industrial Estate a
by-pass of Pelaw Main would be required.
This by-pass is proposed to pass through the largest fragment of Kurri
Sand Swamp Woodland remaining (an Endangered Ecological Community found
only in the Kurri area) . This fragment of KSSW has been identified
as the largest remaining by BIOSIS Research P/L who identify fragmentation
as 'the greatest threat facing KSSW.' ( Biosis 2001).
This further environmental impact was not factored into the considerations
when rezoning the Tomalpin industrial estate even though it was known.
1.3) Cessnock council setup a process to ensure the land was rezoned.
Those objecting to the rezoning could not have their concerns fairly
heard.
One of the most important features of the environmental assessment
process was the engagement by Cessnock Council in July 2001 of a Consultant
Executive Planner.
The role of the Executive Planner was to facilitate the rezoning of
the Industrial Estate in accordance with Councils timeline and to 'Project
Manage all DA's lodged for the Estate (Consultants Contract 2001).
The Executive Planner told FOT (phone conversation May 2002) that he
took on the contract believing that the rezoning was already committed
to and that his job was to make it 'as good as possible'. FOT subsequently
gained access to the Contract of the Executive Planner via FOI and confirmed
that the Planner was in fact contractually bound to get the draft LEP
gazetted in accordance with the timeline for the project. Cessnock Council
were reimbursed for the costs of the Executive Planner by the developer
of the industrial estate.
The Executive Planner was responsible for assessing all of the submissions,
both public and Agency, made during the exhibition period of the draft
LEP.
The issue that most concerns FOT is that of how could a Consultant
who was contractually obliged to get the LEP gazetted conduct a fair
and objective assessment of those submissions which were objecting to
the proposal. It seems obvious that there is a conflict between the
obligations of the Council under the EP&A Act s.67, which invites submissions
from any member of the public, to consider in good faith all submissions
received and the arrangement used by Cessnock Council.
The biased nature of Cessnock Councils' assessment of the Public and
Agency submissions is underlined by the fact that the elected Councilors
did not know they they were not receiving an independent assessment
of the submissions received. If the elected Councilors had known that
the Executive Planners purpose was to get the land rezoned rather than
to provide them with an objective assessment of the rezoning proposal,
the Councilors could have chosen to read the submissions for themselves
or do further research.
FOT believe that there is a Conflict of Interest (Pecuniary) issue
on behalf of the Executive Planner which should been declared (S.456
Local Government Act 1993) to the Councilors.
The use of this biased process by Cessnock Council is offensive to
the Cessnock community. Most people believed that their submissions
would receive full consideration (in fact they were told that at a Public
Meeting) and it is insulting to find out that the Executive Planners
recommendation to Council was a foregone conclusion.
This flawed process used by Council to assess the submissions regarding
the Industrial estate seems to fit with the idea that both the Premiers
Department and Cessnock Council had predetermined that an industrial
estate would be established at Tomalpin. Consequently Cessnock Council
was simply going through the motions of public exhibition and did not
see the role of the Executive Planner as being in conflict with the
provisions of the EP&A Act.
Cessnock Counci'ls response to questioning by Councilor Claire Cosh
(1999-2004) and Councilor James Ryan (2004 - ) has been to say that
as Council was not the consent authority thereby implying that assessment
of public, or other, submissions was not its responsibility. This is
a position that FOT strongly objects to and it seems contrary to S.67
and 68 of the EP&A Act.
It is without doubt that Cessnock Council did not conduct an adequate
or independent assessment of the environmental issues regarding the
Tomalpin site.
1.4) The failure of the Department of Infrastructure, Planning and
Natural Resources (previously Dept. Planning) to assess the Public submissions.
Following our concerns of the lack of assessment of the objections
and environmental issues performed by Cessnock Council, FOT were anxious
to find out if DIPNR had conducted an assessment of the public submissions.
Despite our FOI search we have not found any indication that DIPNR
conducted an assessment of either the public or agency submissions.
Rather the department seems to have simply adopted the report from the
Executive Planner. The department may have been unaware of the details
of the Contract of the Executive Planner. The FOI material from the
Department of Planning viewed by FOT does not show any discussion or
notes of assessment of the public submissions.
One of the public submissions requested a Public Hearing under S.68
of the EP&A Act. This was denied by the Executive Planner at Cessnock
Council. The Ministerial Advice provided by DIPNR notes the request
for a Public Hearing and informs the Minister that Cessnock Council
had decided it wasn't necessary on the basis there had been adequate
consultation! (Department of Planning, Minute, 7th March 2002) It seems
logical to suggest that had DIPNR been attempting to assess the submissions
they would have given their own reasons for refusing (or granting) the
Public hearing.
In the correspondence seen under FOI at DIPNR were some claims from
individuals who claimed that submissions in support of rezoning the
Tomalpin site had been forged in their name. Cessnock Council indicated
there were a number of telephone complaints regarding this issue in
addition to a piece of correspondence. These people had complained after
receiving an acknowledgment letter from Cessnock Council.
The DIPNR Ministerial Minute (which made a big deal of the number of
submissions in favour of the Industrial Estate) made no attempt to reduce
the number of submissions 'for' by the number of complaints of forgery.
FOT interpret this to mean DIPNR simply adopted the Executive Planners
report from Cessnock Council.
Conclusion regarding the 'environmental assessment process'.
FOT are left with the conclusion that:
· there was a pre-determined decision by the
Premiers Department and Cessnock Council since December 1998, under
the guise of 'whole of Government approach', to rezone the Tomalpin
site for industrial use.
· Cessnock Council and the Premiers Department
were, and are, unable to understand the ecological significance of the
Tomalpin site, and in some cases simply disbelieved the scientific evidence.
· Cessnock Council deliberately set up a rezoning
process that could only produce one outcome. It appears this process
was in breach of the EP&A Act, disenfranchised the public and elected
Councilors alike, and could not provide a balanced assessment of the
site because of its inherent bias.
· The Department of Planning did not conduct
an assessment of the Public or agency submissions.
· the largest industrial estate in NSW was rezoned
on the sole assessment of a Consultant who was specifically contracted
to get the land rezoned and was funded by the developer. Under this
process objections to the rezoning could never get a fair hearing.
- 2) The actions of the Director General and other Senior Officers
of the NSW Premiers Department
The letter from the Director of the Premiers department, Dr Col Gellatly,
is of concern to the FOT and is a part of the Terms of Reference for
this Inquiry.
The letter from Dr Gellatly (12/11/02) asks the NPWS to 'ensure
there can be no credible claim that large scale industrial park… is
put at risk.' The letter goes on to say 'I would appreciate your
assistance in ensuring this development proceeds.'
FOT view this letter as inappropriate. We understand it is the Legislated
role of the NPWS to inform the State Government and the community objectively
regarding threatened species issues and to implement the Threatened
Species Act as well as the NSW National Parks and Wildlife Act. The
role of the NPWS is not to 'ensure development proceeds'.
According to the FOI documents obtained by FOT the letters written
by Cessnock Council, (22/10/02) and Col Gellatly (12/11/02) and the
two responses from the Director General of NPWS, Brian Gilligan (19/12/03,
undated/unsent), should be seen as formalities which were written after
a series of meetings were held.
FOT believes that pressure was constantly applied to the NPWS. FOT
have obtained handwritten file notes from NPWS Officer Katherine Sale
(20/6/02) . These notes record Ms Sales involvement in a 'Planning Focus'
meeting convened by Premiers Dept. Newcastle Director Ben Chard. The
purpose of the meeting was ostensibly to progress the DA for the HEZ
road. The handwritten notes conclude 'NB primary purpose of meeting
appeared to be to put pressure on NPWS for again apparently delaying
the process - wh/we havent.'
FOT believes pressure on NPWS was a constant event and is consistent
with Premiers Department and Cessnock Council's failing to recognise
the environmental constraints associated wit the site.
The correspondence from Cessnock Council and Dr Gellatly refers to
meetings being held to discuss the Swift Parrot Report and complaints
of delays in the process on the morning of 22nd October (CCC lttr 22/10/02),
'discussions' prior to 25/10/02 (NPWS to Cessnock Council 25/10/02)
and early November (Gilligan 19/12/02).
There are two responses from the then NPWS Director, Brian Gilligan,
to Mr Gellatly's letter of 12th November 2002 and it is hard to know
which of these responses is the most disappointing. The response, which
was sent to the Premiers Department dated 19th December 2002, denies
that NPWS Staff are holding up the project but acknowledges the consternation
caused by the Swift Parrot Report. Mr Gilligans response then goes on
to deny responsibility for the SPRT report and states the SPRT views
are not those of the NPWS. The Director re-commits the Services support
for the industrial rezoning outcome for the site.
The NPWS Director is in effect disowning responsibility for protecting
Swift Parrots. The NPWS is required by legislation to inform the Government
on threatened species issues.
The Swift Parrot Report is an authoritive report from the designated
Recovery Team which clearly states 'The HEZ proposal will have
a significant impact on this endangered species and is contrary to several
actions in the National Swift Parrot Recovery Plan.' Once NPWS
Staff knew the report, the Staff had a legislative responsibility (NSW
Threatened Species Act 1995, s.69) to inform local Councils and the
State Government of the ramifications of the report for development
and rezoning decisions.
It seems that the first impact of Dr Col Gellatly's letter (and the
meetings and discussions which preceded it) was to effectively warn
the NPWS off taking on board the Swift Parrot Reports recommendations.
The current Department of Conservation and Environment should be asked
to explain why this shouldn't be called a breach of their legislative
responsibilities.
Under our FOI request FOT received another version (NPWS FOI Doc.16)
of a NPWS response to Dr Gellatly's letter. This alternate version is
rather more frank than the version that was actually sent. The alternate
version has a more frustrated tone and describes a meeting with the
office of the Minister for Hunter development, the Premiers Department,
Cessnock Council and the proponent in early November 2002 to explain
that the SPRT report was not the view of NPWS.
The alternate response then goes on to say 'finally I would seek
your departments active support for the Threatened Species conservation
Act, as recently confirmed by the Parliament. The legislation is workable,
and will continue to apply to HEZ as it does throughout NSW.'
The implications of the last statement are worrying. It seems to be
indicating not only that the Director General of NPWS has a concern
that the Premiers Department is not actively supporting the Threatened
Species Conservation Act, but additionally a concern that the Premiers
Department may not be supporting the application of the Threatened species
Conservation Act to the HEZ.
It would be a very serious concern if a State Government Department
was not supporting the Legislation of the NSW Parliament.
The final result of Dr Gellatly's letter to the NPWS and the general
pressure applied to the NPWS in late October/early November seems to
be reflected in the written advice given to Cessnock Council by the
Parks Service with regard to two development issues. These developments
(the initial road into HEZ and the DCP and Management Strategies to
guide development) were on public exhibition at the time of the letters
written from Council to the Premiers Department.
Both the letter from Dr Gellatly and from Cessnock Council complained
that the NPWS was holding up DA's for infrastructure because of the
Swift Parrot Report. The letter from Council specified;
'Meetings held with NPWS staff this week have focused on new information
from the National Swift Parrot Recovery Team and have suggested that
the DECM (Detailed Ecological Constraints Mapping) is required to be
completed before NPWS can adequately comment on, and make decisions
about, the Habitat Management Strategy, the Stage 1 Infrastructure DA
currently on exhibition…'
The written advice to Cessnock Council regarding the Habitat Management
Strategy and DCP dated 25th October the NPWS makes absolutely no mention
of the Swift Parrot Report. This advice is at pains to mention that
'in light of recent discussions on the Hunter Employment Zone between
Council, National Parks and Wildlife and Premiers Department staff the
NPWS affirms its support' for the rezoning as reflected in the LEP.
The written advice to Cessnock Council regarding the Stage 1 Road (
NPWS Comments on DA Stage 1 Road, faxed 1/11/02) the NPWS only mentions
the Swift Parrot Report to confirm that its views are not those of the
NPWS. This particular advice to Council is concerning because it contains
two contradictory claims.
The first being that the advice states that there were specific survey
requirements for the Species Impact statement that weren't fulfilled
(p.3) and without that information it is very difficult to make decisions
about whether or not the proposal will have a significant impact on
these threatened species (p.4). It also claims that a number of threatened
species were not adequately addressed in the Species Impact Statement
(p.3). The advice then goes on to say that the proposal, as described,
will not have a significant impact on threatened species (p.6).
The last statement seems to be at odds with the previous observations
that not enough information was present and some threatened species
had not been adequately surveyed.
FOT concludes that it can be clearly shown that the Premiers Department
after receiving the Cessnock Council letter, and via a series of meetings
and 'discussions' placed a great deal of pressure on NPWS. The result
of this pressure was a dramatic change in the advice being offered by
NPWS Officers to Cessnock Council. The change resulted in the swift
approval of a Development Application for a 5.7km Road in the HEZ and
the adoption of a 'Habitat Management Strategy', which did not even,
consider the issues raised by the Swift Parrot Report.
It could also be argued that the effect of the pressure went beyond
'knocking out' the Swift Parrot Report an extended to making sure there
was no objection to the Road DA even though the Species Impact Statement
was observed to not meet the Director Generals (of NPWS) Requirements
for surveys of threatened species.
The overall result leads FOT to believe that the Director General of
NPWS was pressured by the Premiers Department into directing his staff:
a) not to object or request further information on threatened species
in regard to a DA in the HEZ, and b) not to act on the Swift Parrot
Recovery Team report and recommendations for habitat protection for
Swift Parrots in the HEZ. In doing so we believe the Director General
of NPWS prevented his staff from fulfilling their statutory obligations
and acted on political motivations rather than scientific ones.
We also believe the DG of NPWS had a real concern that the Premiers
Department did not support the Threatened Species Act, particularly
in relation to HEZ.
FOT hope the GPSC No 5 will request the Department of Infrastructure,
Planning and Natural Resources to review the appropriateness of the
current zoning of land in the Tomalpin area in accordance with the recommendations
put forward by FOT at the beginning of this submission.
James Ryan Friends of Tumblebee