*Pic: The enormous workshop. Says Ivo: “We have been custodians of the old ANM Depot buildings for the past 24 years. The buildings, especially the enormous workshop, have heritage value, even if not of official heritage status. It is absolutely clear that if we are evicted, the place will have no security, and it will be just a few weeks before vandals and thieves trash the place, leaving it with broken windows and roofing, exposed to the elements and possums.”
First published September 24
Tasmanian Times readers might remember my pleading letter to the Derwent Valley Council (DVC) to not approve the proposed limestone quarry at Roberts Rd, Maydena, just across the road from our old ANM property near Maydena (article linked below).
Well, that didn’t turn out too well with the DVC approving the quarry 3:2 in favour with 2 abstentions. The quarry is now free to start apart from 2 appeals to the RPAMP appeals tribunal on relative minor matters of detail, and the pesky matter of us residing just 300 metres from the positioning of the noisy machinery. Our presence means that the brand new 2017 Quarry Code of Practice must be ignored for the quarry to proceed. The quarry Code of Practice guidelines specify minimal distances between the quarry machinery and nearest sensitive use location of 300 metres where no blasting, crushing or screening occurs, 500 metres where vibrating and trammel screens alone are utilised, 750 metres where material is crushed only and 1000 metres where regular blasting takes place.
The DVC has taken the expedient route to overcome that problem by issuing us with an “intent to evict” notice: -
“AND TAKE FURTHUR NOTICE that I propose to issue you with an Enforcement Notice in relation to the above offence. Such Enforcement Notice will require you to immediately cease the illegal use and may require the removal of certain items from the property and the discontinuance of certain conduct at the Property.”
I’m not sure about the correctness of their starting a sentence with “AND” and capitals in unusual places, but they obviously mean business! We have until 27th Sept. to appeal this decision, but just to the DVC, not any independent agency or court.
We feel confident that we are legal residents, but that we have minimal chance of successfully appealing our pending eviction notice to the same agency that issued the initial eviction intent notice, and when it will be decided by just a few senior executive staff members in the DVC, who have a vested interest in progressing the limestone quarry next door.
The reason we are legal residents is summarised as follows: -
1. We are legal residents owing to our ownership predating the 1993 planning legislation.
2. We have been acknowledged by DVC council as having a house here, via inclusion of that word on our rates assessment, and “dwelling” on our title documents.
3. We are safeguarded by statute of limitations legislation, banning action for an unproven offence which happened 24 years ago.
4. We are advised that a fire destroyed nearly all DVC records of our old ANM property? How then can DVC have any evidence that we have failed to comply with any obscure permit requirements in 1993.
5. We fully complied to the best of our knowledge and ability with all known DVC conditions and permit requirements in 1993.
6. We would automatically have had ANM office and residence permits extended, so hence had no need to apply for new permits.
7. We have been advised by DVC that the onus is on us to prove legal residence status, but that is incorrect. In law innocent until proven guilty applies.
8. We have been inadequately advised of details of our offence, via flat refusal of DVC to answer my repeated questions and explain how the notice of intent to evict was decided, nor provide minutes of discussion at the decision making process.
9. The legislation quoted in the pending eviction notices cites legislation that does not apply to our 1993 condition. Legislation cannot be applied retrospectively
We seriously need the DVC to act like an impartial umpire in this dispute and not continue to act as a kangaroo court. (definition: an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty of a crime or misdemeanour.)
My specific complaint at this stage is that the DVC flatly refuses to communicate with me on this matter, despite repeated emails explaining our situation and expressing frustration at their attitude. I have an itemised list of over 10 different repeatedly sent unanswered emails to DVC for just some of my questions to Council administration.
Here is just one: -
“Dear DVC, (22nd August)
Thank you for discussing our legal residence use status with my daughter Jo.
We will seek legal representation from an accredited planning lawyer if we need to in coming weeks. In the meantime I am hoping that common sense can prevail and we will be totally cleared of any wrongdoing and avoid an eviction threat for what we claim is at worst a trivial technical unproven allegation, and an obvious ploy by the proponents of the nearby quarry to gain permission in an underhand way to pollute our property with noise, dust and water contamination.
We seriously need the support of the DVC here, not a witch hunt to find some legal reason to have us evicted. We have been custodians of the old ANM Depot buildings for the past 24 years. The buildings, especially the enormous workshop, have heritage value, even if not of official heritage status. It is absolutely clear that if we are evicted, the place will have no security, and it will be just a few weeks before vandals and thieves trash the place, leaving it with broken windows and roofing, exposed to the elements and possums. Within a year or two it can confidently be predicted that the site would then be a derelict trashed eyesore, with the heritage historic values forever gone. In the meantime it is likely that the adjacent quarry will have come and gone, owing to its uneconomic prospects trying to sell very low grade limestone. Then there will be eyesores on both sides of Gordon River Rd, a sad sight for all tourists seeking to explore the scenery and history of the area, but, I suppose, a salutary tale for historians to ponder?
Can we please go through the issues at stake here? I am still unsure of the problem. I will explain the complaints as I see them. Can you then please explain the DVC viewpoint?
1. We bought the property legally, and continued to occupy the house that ANM had used as an office, mainly through the day, but also at night. The residence/office is unchanged structurally from ANM days. It is still used as an office, but also as sleeping quarters. We need to know if the DVC is alleging that we should have applied for a change of status of the ANM office to a residence, when the distinction is minimal, whether we should have specifically applied to the council to use the office for ourselves, as distinct from the previous owners, and what we should have done differently. Please back up any DVC legal opinion with relevant references to substantiate its claims.
2. Re whether the DVC has long known of our 24 year residence at this site. We have been receiving various letters, rates invoices and dog licenses constantly, so we claim that that constitutes obvious evidence of residence occupancy. We would hardly use the site, 2 km from Maydena, just as a postal address to collect mail? We can’t find, at least for the moment, any correspondence categorically proving our residence was known and approved by the DVC, just as they, apparently, have no data to suggest that it was not?
3. Re what difference the 1993 planning legislation makes to our status, regardless of any previous ambiguity regarding our legal residence status.: No matter what we were doing residence wise prior to the 1993 legislation, it is perfectly clear from section 12 clauses that we are entitled to continue use of any building we were using prior to November 1993, so long as the building had been legally constructed and legally used immediately prior to the legislation enactment.”
Once we are issued with our definitive eviction notice I will be complaining long and loud and DVC council members are likely to be collateral damage in an unpleasant row. I wish they would show some support.
Please imagine some of the headlines:
1. Frail 72 year old aged pensioner callously evicted for quarry development after 24 years as custodian of heritage valued old ANM buildings.
2. Abandoned Old ANM Depot buildings with significant heritage value now open to vandals, thieves and the elements following eviction of owners.
3. Last chance to inspect amazing old ANM 2400 sq metre workshop before it is trashed.
4. EPA and DVC approve limestone quarry development, ignoring Quarry Code of Practice guidelines.
The absurd situation is that as EPA quarry approval conditions stand, the quarry can proceed with no noise restrictions whatsoever on our property so long as we are not declared “legal residents” That is to say if the baying hounds at the DVC back off, we can live with reluctant tolerance with a quarry next door without any formal decision needed as to our residence legal status. Then we can work towards changing our zoning from General Industrial to Rural, and gain accredited residence status. If we are in limbo residence status then there are no restrictions on noise. If we are officially declared “legal” then the quarry can still proceed, but with a noise restricted to no more that 45 decibels at our main sensitive site location. Why be so obsessed with evicting us then? The quarry proponents have repeatedly stated that they can comply with this limitation.
It is very frustrating to have a pending eviction hanging over us with the DVC refusing to even discuss the issues with us. This is via a continuing pattern of refusing to properly respond to my emails seeking further details on our supposed illegal residence status.
I am accumulating data to present to the Director of Local Government as a complaint against the DVC. I will be accusing the Council of malpractice. I will present evidence that the Council is aiding and abetting the quarry proponents in an attempt to have us evicted to allow the quarry to proceed. Their total lack of response to my questions will be key evidence.
Please, anyone relating to this total outrageous attempt to evict us on a trumped up totally trivial unsubstantiated charge, complain long and loud to DVC staff and politicians.
Some analogies might be in order:
A. Suppose someone lost his driver’s licence and the police pulled him up and said that onus was on him to prove he had the required licence. The cop explains while taking the guy to the local lockup. “Oh, by the way, don’t look to us to check our records to prove you right, because our records have all been burnt”. The moral of the story: - if we lose something and the DVC has had its records burnt, then we are in trouble through no fault of our own.
B Second example: Man is mistakenly charged with murder. Court says “Sorry, tough luck. - rule change, the onus is now on you to prove yourself innocent, not on us to prove you guilty” The key to his jail cell is thrown away. Moral: it is vastly more difficult to prove something when told “the onus is on you to provide proof of legal residence” than for innocent until proven guilty rules, as universal in law courts, to apply.
C. Third story – 2 people have a $1000 bet. One says there are no foxes in Tasmania, the other says there are. The first person can’t categorically prove there are none because it is generally impossible to prove such a negative. The other person sneaks in a dead fox from Victoria, plants it beside a road and claims the bet winnings. Moral: cheats usually prosper. In our case it is easy for the DVC to find some trivial little misdemeanour in its array of rules and regulations to issue an eviction notice.
DVC contacts, including council members http://www.derwentvalley.tas.gov.au/page.aspx are available on their website. Please note also that the DVC mayor and General Manager have both recently been found guilty of malpractice:
This does not engender confidence in their ability to impartially assess our legal residence status, let alone sensitive use rights. Sensitive use rights are where people are generally not actually employed and working in a site eligible for quarry noise restrictions to apply. They are engaged in non employment activities such as a caravan park or, in my case, legally engaging in hobby activities on our property, whether legal resident or not.
*Ivo Edwards is an independent scientist and inventor from Maydena. He lives on a site zoned General Industry but has no industrial activity and plans none. He is, perversely, threatened by a potential limestone quarry next door on a site zoned Rural Resource which wants to evict him because it is illegal these days to reside in a General Industrial zone. The quarry proponents apparently want unrestricted rights to pollute his property with noise, dust and contaminated water.
• Ivo Edwards in Comments: … I think bookmakers would give great odds on us winning an appeal, but no doubt the DVC will present a team of the best and most expensive lawyers to represent them, so tough luck if we lose and have to pay their costs. But then again if we win and they have to pay the costs of our lawyer and the same $520 per hour for me lying in bed thinking about my strategies for a couple of hours each night, then that would be nice. Probably better odds than poker machines to come out ahead eventually if we appeal, I think …
• Jon Sumby in Comments: … There are Things You Can Do …
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