Thursday, December 31, 2009

Land & Environment Court: Woolworths' try for Mullumbimby

NEWSLETTER 70 31 Dec 09

First of all, HAPPY NEW YEAR, folks! Many thanks to the kind people who contributed to our trip to the court case in Sydney. Much appreciated!!



The above case was to challenge Byron Shire Council’s refusal of Woolworths proposed on-site sewage system? Did they do that? NO! What happened? They thrashed out a round-table “agreement” at lunch time, presented their arguments for and against the latest on-site sewage management plan to the Commissioner and finished after less than one day, the second day’s hearing (Christmas Eve) was cancelled. Now we await the Commissioner’s decision which will come around the end of January.

After 2 years of campaigning, three court cases (two of which were deferred because Woolworths didn’t have a new management plan ready, despite the fact that the case was ostensibly about the management plan which was refused by our councillors) this was a very disappointing outcome. Ratepayers have paid for this court case, and it has not been about the right and wrong of BSC councillors’s approval – it’s been about how Woolworths can get the go ahead with “agreement” from both sides, with the Commissioner being the approval authority. If he approves it, and if things go wrong, who will be responsible? The Commissioner??

23 DECEMBER: In the morning, various items were presented and documented as exhibits – for example the Updated Draft Conditions of Consent: Exhibit 24. Our Counsel, Tim Robertson stated that they would have to be modified.

Commissioner Hussey: “Where’s the disagreement?” [about the Conditions]

Tim Robertson (Counsel for Byron Shire Council) made comments as follows:

  • System failure: the way the system is designed will lead inevitably to a de facto pump out system.
  • Critical control particulars such as:
    - volume into the plant

- volume into the irrigation system/effluent field

  • peak flow rate: if the re-use system breaks down the numbers double.
  • CFUs one more in 100mL then you can’t use the water in the toilets

[CFU is Colony Forming Unit, a measure of viable bacterial or fungal numbers]

  • Inadequacy of management plan which we consider unworkable. They have retrofitted documents rather than building from the ground up.
  • Tasks given to the Woolworths Floor Manager are beyond his expertise. Critical person is the service contractor his not someone who is skilled in effluent irrigation management.

Other matters such as the number of pumpouts allowed per year, and the consequences of the failure of the model were mentioned. McEwan (Counsel for Woolworths) made some comments – ask Deb for details.

Basically the Commissioner wanted to agreement to be reached on the Consent Conditions for Woolworths development to go ahead. He asked the legal teams whether agreement might be reached that day – there was a shocked silence and then the Commissioner added that the administration staff wanted to know (NB next day being 24 Dec). The legal teams said they probably would, and lunch time was spent with them sitting around a table with the experts, coming to “agreement” about the conditions for Woolworths to operate.

After lunch, I arrived back and witnessed some of the round-table conversation. The soil expert Catherine Hird, commissioned by BSC, had been making a point (as I understand it) about the complexity of the on-site management plan. She was being roundly put down by both sides with “But Catherine …” in loud voices. My impression was that Ms Hird was not being heard.

A solicitor for Woolworths suggested that extra pumpout should be allowed to Woolworths in case of suspected sabotage from anti-Woolworths protesters because if they put one bottle of bleach down the toilet each day, then the whole system would be out of action.

When the Commissioner returned to the court, the court attendant called out “Silence in the Court” everyone stood up, and bowed their heads. The Commissioner was asked for a little extra time, and was assured that all would be finished that day.

When he returned, both legal teams gave speeches, and Tim Robertson outlined why the on-site sewage management system should not go ahead. His speech was reasonable, might have been convincing and yet seemed hollow since, as I understand it, they had all been thrashing out an agreement to make it a “viable” proposition.

McEwan did his speech for Woolworths. This man has chutzpah; his attitude is aggressive. He summed up the extraordinarily intricate management plan which hundreds of pages long thus: “They just have to look and see if its ponding, check the dials and fill out the log sheet”. Further, he said categorically “the land is not constrained” and “This system is 1000 times better than other systems”. I could see why Woolworths employed this man.


The agreement apparently includes 200,000 litres of sewage leaving the site in tanker trucks – about 3 months of the sewage produced per year. Effectively this makes in an off-site and not an on-site system, and tankering is still illegal in Byron Shire. As for the buffer zones, apparently the current proposal is for 1m buffer zones and not the 3-6m zones currently required for human and environmental health. Ask Shannon McKelvey or Ray Darney at Byron Shire Council for confirmation of the above.


From the Court’s website, their purpose is to safeguard and maintain

  • the rule of law
  • equality of all before the law
  • access to justice
  • fairness, impartiality and independence in decision making
  • processes that are consistently transparent, timely and certain
  • accountability in its conduct and its use of public resources
  • the highest standards of competency and personal integrity of its judges, commissioners and support staff.

It will be interesting to find out whether the Commissioner will construct a new rule of law in the case of Woolworths – in particular the Clause 45 (1) of the Byron Local Environment Plan 1988 which does not permit pump-out of effluent. A precedent set to refuse pump-out was set in the Codlea-v-BSC case 1999. The Local Government Act and Local Government Regulations set standards for on-site systems which were acknowledged by Byron Shire Council in their refusal of Woolworths on-site system.

Address for contact: Commissioner Hussey, L & E Court, PO Box 3565, Sydney 2001 or see for details. Let him know you care!


“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” (Charles Dickens: Oliver Twist).


The following info comes from Mark Byrne from the Environmental Defenders Office (EDO) Lismore. Contact: mark.byrne(at)

1. Climate change

In the washup to the Copenhagen summit, in early February the EDO will present a series of free evening seminars on climate law. They will feature our man on the ground (or out in the snow) on Copenhagen on what went wrong, the prospects for a legally binding global treaty, and what the commitment by major polluters in the Copenhagen Accord to limit the global atmospheric temperature rise to not more than 2 degrees C might imply. Northern Rivers staff will also speak about where that leaves the CPRS and alternatives, and recent and current climate change cases in domestic and international courts. Full details including venues next month, but the tentative schedule is as follows:

Port Macquarie, Thursday 4 Feb

Bellingen, Friday 5 Feb

Ballina, Wednesday 10 Feb

Murwillumbah, Thursday 11 Feb

2. Timber plantations

The Plantations and Reafforestation Act and Code have been under statutory review since 2005. On 14 December the NSW DPI finally released the two Bills with amendments to the Act and Code Regulation. The EDO intended to hold a public meeting and workshop to discuss the proposed amendments. However, as the Bills are only on public exhibition until 12 February, this will not be possible. Anyone who wishes to make a submission can get more information at

3. Biodiversity

Also on exhibition over the summer holidays is the Draft Far North Coast Regional Conservation Plan. It "outlines mechanisms to offset the unavoidable impacts on biodiversity arising from the implementation of the [2007 Far North Coast] regional strategy." On 7 December DECCW announced that the Draft Plan will be on public exhibition until 29 January. Anyone interested in reading the Draft Plan and making submissions can get more information at

4. Planning law reform

In November the EDO and the Total Environment Centre held workshops in Ballina and Coffs Harbour, among other places, to update the community on the recent changes to the Environmental Planning and Assessment Act 1979 and to seek community feedback on the NSW planning system. The workshops were based on a discussion paper entitled 'Planning in NSW: Reconnecting the community with the planning system' which outlines the NSW planning system and the opportunities for public participation. People who could not attend the workshops are encouraged to give their feedback on the NSW planning system by completing our online survey at

Monday, December 21, 2009


NEWSLETTER 69: 21 December 2009

LAND & ENVIRONMENT COURT SYDNEY - 23/24 December this week.

This is Woolworths’ last ditch attempt to persuade the Commissioner that they have a viable proposal for an on-site sewage system for the too-small boggy site in Station Street, Mullumbimby. Wws cannot start building until they have approval for the on-site system, or else wait for Mullum’s new sewage treatment plant (STP).


13 August 2009: Byron Shire Councillors rejected (6-1) Woolworths S68 onsite sewage proposal. Woolworths now have to wait a few years for Mullum’s new STP to be built. Not wanting to wait, Woolworths (Wws) challenge our councillor’s refusal in Land & Environment Court.

28 September 2009: Land & Environment Court hearing in Station Street; community submissions given by Duncan Dey, Garry Scott and Deborah Lilly. Next day case moves to Ballina Court House. Instead of the hearing being based on the proposal which was refused by our councillors, the commissioner agrees to let Wws come up with a new and different proposal – but, hey, its not ready – so case is adjourned, till next time, never mind the expense. By being late with their new information, Wws become liable to pay Council's costs. The issue of costs would be heard in a different Court. Council would have to mount that case and, unfortunately, the substantial costs of that court case are not recoverable.

18/19/20 November 2009: Sydney Land & Environment Court – Guess What!! Woolworths new plan is still not ready. Commissioner agrees to give them another month to come up with a plan.

23/24 December: Sydney Land & Environment Court ALL WELCOME!!! The new plans are ready!!! Are they final??? Of course not, each page is stamped with “Preliminary for Discussion” Will they work? My on-site septic is 'flush and forget'. Not so for Woolworths – the Management Plan is 178 pages long and is so complicated they will have to train experts to operate it.

The Commissioner has been excessively and suspiciously generous to Woolworths in allowing them THREE (3) attempts to convince the court that they can come up with a plan that will work, and it is plain for all to see that our councillors WERE RIGHT TO REJECT Wws original proposal.

I shall be flying to Sydney tomorrow for the court case and Duncan Dey and friend are driving overnight to get there so Mullumbimby community will be represented – we feel its crucial to keep an eye on proceedings and let them know we’re watching.
Any donations for our efforts will be welcomed, please go to: Thanks Param in Bristol UK for offering some financial support.

The Wws plan has plenty of inadequacies, despite its 178 pages. Contentious issues include, for instance, the buffers between the effluent disposal area and the boundaries being considerably less than 1 metre; management of foul odours and putrid gases have not been properly evaluated; Dept of Health apparently has not been consulted about the use of recycled effluent for flushing toilets and whether the inhalation of fine droplets and possible pathogens is a health hazard; the extraordinary complexity of allowable situations when tankers might be used to remove the effluent (currently illegal in Byron Shire); the impact of the mainstream chemicals for cleaning the supermarket and food preparation areas & utensils which are designed to kill microbes, bacteria and algae which will then go into the on-site septic tanks and irrigation systems and probably render them useless.

I have researched some of the chemicals in the products as the Material Safety Data Sheets (MSDS) supplied by Woolworths do not have the relevant information, such as the ingredients of the cleaning products, their toxicity, and Hazchem codes. We have been fobbed off with dummy MSDS sheets that look official! I have googled some of the products, and checked out the ingredients – in particular J512 which is used to sanitise sinks, all surfaces, all items which are handled, buckets, J-fill kits (sprayed onto walls, cabinets, etc) floors, etc has ingredients which are algaecidal, microbicidal. The Panclean product is bactericidal and microbicidal. I list here the other products and if anyone out there has a chemistry background and can explain the effects of these products, especially whether they will negatively impact the microorganisms in a septic system, please contact me, Deborah(at) and the legal representative from Byron Shire Council, Shannon.Mckelvey(at)

The products to be used at proposed Woolworths supermarket, Mullumbimby:
View Quick WW diluted 1:100
Pronto WW diluted 1:4
Reveal WW diluted
Revive WW diluted
Sanibrite liquid diluted 1:200
Soft Care antibac
Sparkle JF diluted
Panclean JF diluted
Pinnacle WW
Breakup Diluted 1:300
J512 JF diluted 1:512

J512 Ingredients:
n-Alkyl Dimethyl Benzyl Ammonium Chloride CAS 68391-01-5 which is algaecidal and microbicidal - and
n-Akyl Dimethyl Ethylbenzyl Ammonium Chloride CAS 68956-79-6 which is bactericidal/microbicidal

Furthermore, the Department of Planning News Release of 22 January 2008, when they approved the Woolworths Stage 2 with onsite, stipulated Woolworths’

• "Deferring introduction of in-house, water-intensive fresh food preparation areas until a later stage of development which will be linked to the introduction of a reticulated sewer at the site."

It will be interesting to find out whether or not Woolworths are now planning to introduce an in-house, water-intensive fresh food preparation area, before the new Mullumbimby reticulated sewer STP is built.

More news post case.
Merry Christmas to all our readers.
May the New Year be Woolworths-free in Mullumbimby.

Our contact at the L & E court: Duncan Dey: 0429 845440
My mobile: 0435 421053 (Deborah Lilly)

PS: Please see our website and check out the article about Woolworths marketing pokie gambling pubs to children … and how the debate about pokies at the Woolworths AGM was shut down. Woolworths are the biggest operators of pokies in Australia.