Why this document is fuelling water war on the Tweed
THE war over water extraction in the Tweed continues as a development application has operators and a community action group butting heads once again.
In the middle of the battle is a document seeking to increase groundwater extraction for bottling at Gary Appleby's Nobby's Creek property.
The development application (DA) was submitted last year to the Tweed Shire Council, and after a legal battle, has been put on public display until May 28.
The DA, which estimates costs to be $165,000, seeks to increase extraction to 38ML a year from 12ML.
If passed, the DA would mean operation would continue 24 hours per day, seven days per week - the same as the current consent.
The document also seeks to change the unlimited number of truck movements permitted for bulk water extraction to a maximum of six truck deliveries per day using a 15m tanker and one five-tonne delivery per week which may increase if demand increases.
It states the "applicant wishes to transport the water at night to minimise impacts on other road users".
Mr Appleby says his existing consent from his first and original water licence allows an unlimited number of trucks and no restrictions on the times of operating other than the volume of water the bore was allowed to draw.
"In our original licence there are no limits on trucks, we could have any number, any day, any time so we wanted to rectify that," he said.
"So far as the size we do understand that we are restrained to 15m tankers, however, and we may well use 10m body trucks in the sum volume of six trucks per day.
"We do about two to three trucks a day … we were told to put in as many trucks as you think you will ever need in a day on the DA, so we put down six.... if we needed to have six trucks per day then we could have a mix of 15m and 10m trucks to manage our allocated volume."
The DA also proposes the use of items which were incorrectly built on crown land, including a water delivery pipeline, water tanks installed for bulk water supply, and masonry fence.
Mr Appleby said the wrong position of the fence was because of "inadequate information from our surveyor".
"We never recognised that the fence could have been in the road reserve because of a some 100-150 year old tree that was positioned right in the middle of the 'drawn road'," he said.
"We had no knowledge of the correct location of the Crown Road and no intent to encroach its boundaries."
Mr Appleby said he had no knowledge he had built on the wrong area until advised by the TSC.
"Did I put a wall up in the wrong place? Yes, but look at where we are. We are in the middle of the scrub, 400 acres of land in bush and this road runs through our property," he said.
"Our fence did not affect anyone else.... The Crown Road only services our property and Bryens Rd from our front gates only service our private property."
Mr Appleby said he invested a lot of money into the development application well before the council voted to change the Local Environment Plan in March.
In March this year, councillors made the controversial decision to ban the expansion of commercially extracting water in the shire by using bores that extend to where water is found flowing through the bedrock and putting it into plastic bottles for drinking.
However, the change to the Local Environment Plan is still waiting to be rubber stamped by the State Government.
The Tweed Water Alliance is staunchly against Mr Appleby's application, while the operator of Quest-brand bottled water said the group was creating "a ruckus" when most of the issues had already been "put to bed".
Mr Appleby said he wanted to be "fully open" and accepted explaining himself was "part of the process of democracy that we live in".
But TWA spokesman Pat Miller said the organisation was gearing up for a battle.
Mr Miller said the group believed the development application to have "conflicting information, flawed logic, dodgy science and gobbledygook designed to confuse".
He claimed the water extraction industry gave no benefit to the local economy.
"The four active water miners in the Tweed Shire are approved to take 112 ML of groundwater annually. That's 3.24 ML a week, with one more approved to operate," Mr Miller said.
"The water is trucked out, it doesn't even serve the local environment and its water cycle.
"The flawed legislation is propped up by political gamesmanship, based on the increasingly ridiculous idea that water is a tradeable commodity."
Mr Miller said the water industry's "game is to try for ever-increasing volumes and play tragically maligned victims to address objections".
"In most of the community's opinion, it's water theft," he said.
"Water miners are reaping profits at community expense with minimal scrutiny.
"It's not remotely OK. It never was."
The Tweed Water Alliance has encouraged the public through social media and emails to make submissions against the Nobby's Creek proposed development.
Mr Appleby claimed the TWA was small in numbers and loud in noise.
TIMELINE OF EVENTS:
- Mr Appleby has been operating a water extraction business since 2006.
"Our original DA for Bottling of Spring Water and Bulk Water deliveries and the Statement of Environmental Effects stated that as our business would grow our volumes and activities would also grow," Mr Appleby explained.
"Whilst the consent had some conditions for the delivery of bottled water, one truck per week, there were no conditions associated with the bulk water so the assumption, also admitted by Tweed Shire Council, that we have no limits on truck numbers, delivery hours or delivery days only that our original consent was for 12 ML."
- His licence was modified in 2008 by the NSW Office of Water to 38ML.
Mr Appleby claims there were no instructions to comply with TSC and he proceeded on the basis of understanding the conditions in his original DA and the SEE.
- Mr Appleby said about three years ago he built a fence, additional tanks, a turnaround, gate, standpipe on a road that was classified as crown land.
- In June 2018, the TSC issued the request to satisfy compliance issues and Mr Appleby said this resulted in an invitation to submit the new DA with the council's support in April 2019.
He said the infrastructure built on crown land was identified by TSC and all Compliance issues raised were resolved within the DA.
- He submitted the DA in June 2019.
Mr Appleby says he was persuaded by the TSC Planning and Legal Officers to pay money to help the council make an application to the Commonwealth to transfer the land to the council for a land swap deal.
He said this was "so they could complete their extensive report recommending a land swap to us which would have allowed the TSC as 'new' owners to consent for the DA to proceed".
- However, Mr Appleby says after this process was completed, the councillors voted to go against council officers' recommendations in the report and rejected the proposal.
Instead, on November 7, 2019 the TSC councillors voted to issue a demolition notice for the infringing structures.
- Mr Appleby appealed the decision by TSC not to accept the DA in February, 2020.
- Mr Appleby's DA was accepted by TSC in April, 2020 after the legal battle and is in the process of being reviewed.
"Our lawyers pressed TSC via an appeal through the Land and Environment Court and we were subsequently advised that they would accept the DA after great legal expense which is continuing," he explained.
- The approval for the council's DA to demolition the structures on crown land was approved in May 2020.
The Tweed Daily News understands the demolition arrangement is awaiting the outcome of the DA review.
When approached to check this timeline, a Tweed Shire Council spokeswoman said "it would not be appropriate to provide detailed comment given the current legal proceedings - other than legal action commenced by the applicant, and the DA has been lodged and is currently being assessed by the council".
HOW THE DA SEEKS TO RECTIFY ENCROACHMENTS INTO ROAD RESERVES:
THE document proposes-
- Making an application to close the Crown road reserve 10.06m wide and to close the
Bryens Rd reserve for the extent of the property to the boundary of Lot 78 DP 755715
(owned by the applicant). Tweed Shire Council has processed the Road Closing
Applications and forwarded them to Crown Lands to be finalised.
- Creating rights of carriageway over Lot 1 DP 1241753 to accommodate the truck
- Creating an easement to permit encroaching structures to remain over Lot 1 DP 1241753.
WHEN CAN WE EXPECT THE COUNCIL'S EXPANSION BAN TO BE IMPLEMENTED?
A COUNCIL spokeswoman said the NSW Parliamentary Counsel Office has been working with council staff across the past few weeks and have now agreed on the amended wording.
"This has now been sent to the Minister for Planning and Public Spaces, with a request to formally notify the amendment to the legislation website," the spokeswoman said.
The Tweed Daily News understands the request for plan to be notified was sent last Thursday so it could be made as early as this Friday.