Image for Submission:  Gunns’ Application for Permits to Undertake Dam Works. Double-standard, says Booth

Coordinator Water Licence and Dam Administration,
Water Management Branch,
GPO Box 44,
Hobart 7001.

26 Sept 2011

Bill Shackcloth: Section Head/Coordinator, Water and Dam Administration: .(JavaScript must be enabled to view this email address)


Gunns’ Application for Permits to Undertake Dam Works

Dear Sir,

I wish to comment on Gunns’ recent applications to Permits to undertake dam works for Dams A, B and C at the Long Reach project site. I have the following areas of concern:

1 Expiry of the Pulp Mill Permit
2 Lack of legal authority of ACDC to approve Pulp Mill related Dam Works applications.
3 Legality of Miscellaneous Dam Works now in progress


1 Expiry of the Pulp Mill Permit
As you will be aware, there is quite some body of opinion with regard to the expired status of the Pulp Mill Permit. With regard to the question of substantial commencement of the Project, a court case has been listed for hearing next month, and amongst others things, it will be seeking the court’s view as to the meaning of substantial commencement of the project, the status of the Pulp Mill Permit and the legality of the project works.

Section 8(4) of the Pulp Mill Assessment Act states that “The Pulp Mill Permit lapses if the project is not substantially commenced before the end of the period of 4 years commencing on the date on which the Pulp Mill Permit comes into force.”

I would like to put the view here that it is not appropriate to allow any works of any description to be occurring at any of the Project sites, considering that the legality of such works is presently in question. At present there have been a number of earthworks and miscellaneous dam works begun at the Long Reach site since the nominal Permit expiry date, which I believe, was around the 30th August, 2011. Before this date, there had occurred clearing of vegetation for the pulp mill footprint and the construction of an access road within the pulp mill proper project site. It is not my purpose in this section to argue the merits of the case as to the illegality of the works commenced after 30th August, but I do wish to note that the State Service Code of Conduct, which is contained in Section 9 of the State Service Act 2000 (the Act) requires that all employees, including Officers and Heads of Agencies must act with care and diligence in the course of their employment and must comply with all applicable Australian law.

[Section 9(2) and (4) of the State Service Act states as follows:
(2) An employee must act with care and diligence in the course of State Service employment.
(4) An employee, when acting in the course of State Service employment, must comply with all applicable Australian law.]

I therefore see it as incumbent on you to instruct Gunns to cease all further project works until such time as an order regarding the legality of the status of all project works be made.

2 Lack of legal authority of ACDC to approve Pulp Mill related Dam Works applications.
Notwithstanding the status of the Pulp Mill Permit, there is the question of the legal standing of these present applications by Gunns (made 1st and 7th September 2011). It is my view that the ordinary authority to consider, grant, refuse or determine permit conditions which is given to the Assessment Committee for Dam Construction (ACDC) under the Water Management Act 1999 (WMA) is cancelled by virtue of Section 9(1) of the Pulp Mill Assessment Act which lists the types of provisions of Acts, planning schemes, &c., which do not to apply to the Pulp Mill Project.

I include the PMAA Section 9(1) here:

9. Provisions of Acts, planning schemes, &c., not to apply to project
    (1) The provisions of any Act, planning scheme, special planning order or interim order –
(a) requiring the approval, consent or permission of any person in connection with any use or development in relation to the project; or
(b) empowering any body to grant or refuse its consent to any such use or development; or
(c) prohibiting any such use or development; or
(d) permitting any such use or development only upon specified terms or conditions; or
(e) regulating or permitting the regulation of any such use or development –
do not apply to the project.
Part 8 - Division 3 - Functions of the Assessment Committee of the WMA Section 143(a) is an obvious case in point which is negated by 9(1) of the PMAA.  Section 143(a) states that the Assessment Committee’s functions include the consideration of applications for permits, the granting or refusing of permits under Part 9 - Division 4 and the determining of any conditions to which the permits should be subject.

As the applications from Gunns are made under Division 4, Section 146 of the WMA, it is clear that the ACDC has no legislative authority to accept them for consideration, to grant or refuse the applications or to determine conditions relating to them.

The ACDC’s role (under the PMAA 2007 and the Pulp Mill Permit) was largely limited to the enforcement of the Schedule conditions which are laid out in the WM1, WM2, WM3 and WM4 Schedules within The Permit. This role ended when the permits ‘taken as issued’ under the WMA (but not actually issued by the Committee) expired due to lack of substantial completion. Dams A, B and C formed part of the works which had been permitted by WM4. The Committee cannot ‘accept’ (receive) these applications, let alone consider them.

3 Legality of Miscellaneous Dam Works now in progress
I wish to make further comment on the question of the legality of the Miscellaneous Damworks that were begun after the apparent expiry of the Pulp Mill Permit and after the acknowledged expiry of the permits ‘taken as issued’ under the WMA.

The now-expired Permit Schedule WM4 was for ‘Miscellaneous stormwater storage dams and treatment pond dams’. There are presently some 15 dams constructed/being constructed on the site which are not the subject of Gunns Dams A, B & C applications. It has been said that they are works which don’t need permits due to their size.

However, their number is such that they deserve some consideration. Although in certain cases it may be that one does not need a permit to construct a dam that would store less than one ML water, it is fair to raise the objection that to have a series of such dams, side by side, and placed in a line, albeit not individually of ML size. In some cases, there has been constructed on the site earth structures which share a single outer wall and which have an internal division, thus in effect creating two separate bodies of water, held by the one retaining wall. In two cases, structures are divided into three parts by two internal walls. I list these miscellaneous stormwater storage dams and treatment pond dams below, using my own system of numbering which will coincide with the attached images, including a google earth site image with yellow (numbered) locator pins.

1: 1.1, 1.2, 1.3 Image: DSCO 1266
2: 2.1, 2.2 Image: DSCO 1294
3: 3.1 Image: DSCO 1326
4: 4.1, 4.2, Image: DSCO 1333, 1328
5: 5.1 Image: DSCO 1346
6: 6.1, 6.2 Image: DSCO 1348, 1359
7: 7.1 Image: DSCO 1364
8: 8.1, 8.2, 8.3 Image: DSCO 1394/1396

A reasonable account of these dams would discount the suggestion that these 15 project works could be constructed without any sort of permit being required. Clearly these 15 dams (along with Dam A, B & C) belong in the ‘Miscellaneous stormwater storage dams and treatment pond dams’ grouping, which came under Pulp Mill Permit Schedule WM4. As such, I submit, they were works permitted under the aegis of the Pulp Mill Permit, and more particularly, as the miscellaneous works coming under the Water Management Schedules (WM4), they were not permitted to be commenced and are not permitted to continue under the PMAA and the Pulp Mill Permit, due to their lack of substantial completion by the nominal expiry date of 30th August.

For these reasons, and notwithstanding my earlier comments above,(1 Expiry of the Pulp Mill Permit; 2 Lack of legal authority of ACDC to approve Pulp Mill related Dam Works applications.) I submit that these miscellaneous commenced works were unauthorised and that under Section 143(f) of the WMA, you should advise the Minister of this and of the other matters that I have raised in this submission.  As for the permit application from Gunns, I request that you advise Gunns that it is unable to apply for such permits as such an option is precluded by virtue of the PMAA 2007.

Yours faithfully,
Garry Stannus
Launceston and Liffey.

cc Bryan Green:  Minister for Primary Industries and Water: .(JavaScript must be enabled to view this email address)
cc Alex Schaap: Director-Manager, EPA: .(JavaScript must be enabled to view this email address)
cc Ludovic Schmidt: Manager, Water Management: .(JavaScript must be enabled to view this email address)

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First published: 2011-09-27 12:15 AM

• NO ACTION ON PULP MILL PERMIT EXPOSES DOUBLE-STANDARDS
Individuals Could Not Continue Works with an Expired Permit – so Why Can Gunns?

Kim Booth MP
Greens Forestry spokesperson

The Tasmanian Greens today accused Labor of allowing double-standards by their refusal to require the immediate testing in the courts of whether the Pulp Mill Permit is valid or not, given the serious question marks hanging over whether Gunns Ltd has met the ‘substantial commencement’ requirements.

Greens Forestry spokesperson Kim Booth MP said that any other individual or business who let their planning or construction permit lapse would not be able to operate as if it was still current, but would instead be required to start from scratch and apply for either an extension or a new permit.

“Labor’s refusal to require the Pulp mill Permit to be tested in a court immediately is basically the same as turning a blind eye on a problem and hoping it will go away,” Mr Booth said.
“This is an outrageous abrogation of responsibility.”

“In effect, it also entrenches the perception of double-standards where there is one law for Gunns and the pulp mill, and another more stringent bar for the rest of the community.”

“Any Tasmanian who hasn’t built their shed by the time their planning permit has expired, cannot then proceed as if the permit is still valid.  It would be illegal for them to do so.  So why is it okay for Gunns to continue on while serious questions about compliance with the Pulp Mill Permit remain?”

“The Pulp Mill Permit expiry date was the 30th of August, yet almost a month later there has been no decisive action by either the EPA or Labor to get the court to determine this matter one way or another.”