Legal advice to Clarence Valley Council states the way is open to walk back inappropriate planned but as yet unrealised urban development on Yamba flood plain

 

On 6 December 2022 Local Government Legal sent Clarence Valley Council a letter in response to a request for advice and clarification concerning the following: 

(i) whether compensation becomes liable when and if the NSW Planning Minister was to rezone vacant lands that have not had DA approval for development on the Yamba floodplain (WYURA ) from R1 General Residential to RU2 Rural landscape and C2 Environmental Conservation zonings at Council’s request, and 

(ii) whether compensation becomes liable if land previously approved for the importation of fill was to be similarly rezoned;

 (iii) whether there are any other legal implications of such an action.

 

It is clear from the wording of advice contained in the letter, that vacant land can be lawfully rezoned so as to change its status from R1 General Residential to RU2 Rural landscape provided proper processes are followed under provisions of the Environmental Planning and Assessment Act 1979.

It is also clear that compensation is not payable to the land owner if such a rezoning is done in good faith and with due reference to the Act.

It would appear that vacant land may also be rezoned C2 Environmental Conservation under the same provisos.

Existing development approvals on the Yamba flood plain are not affected by rezoning of adjacent or adjoining vacant land which does not have a development consent attached.

However, by walking back the current urban residential zoning on the remaining vacant land in what little is left of the northern section of this natural flood storage area, there is a chance that in restricting the number of new dwelling planned for the West Yamba Urban Release Area (WYURA) to the est. 409 dwellings contained in existing development approvals and thereby curbing population growth on the floodplain it will: 

(i) ease the pressure on emergency services during east coast low storms, high rainfall events, floods or bushfires;

(ii) allow Council to both redesign and upgrade the town's stormwater drainage system to minimise the existing negative impacts of changes to overland water flows caused by largescale landfill being created under existing development consents; 

(iii) allow more choice of flood mitigation measures to increase the town's resilience in the face of ongoing climate change; and

(iv) reduce the risk of loss of life during natural disasters. 

Local Government Legal’s advice was on the agenda at Clarence Valley Council's Ordinary Monthly Meeting on 28 February 2023:

ITEM 07.23.004 ADVICE IN RESPONSE TO NOTICE OF MOTION ON REZONING LANDS ON WEST YAMBA FLOODPLAIN with OFFICER RECOMMENDATION That the advice responding to Item 06.22.013 be noted. 

UPDATE

Snapshot of resolution 07.23.004 and text of excerpt from Clarence Valley Council, Minutes of of Ordinary Monthly Meeting, Tuesday 28 February 2023 (Minutes generated 2 March 2023 at 5:12:23PM) at p.11:

Click on image to enlarge

The advice is provided as a confidential attachment (Attachment A) for further consideration.

OFFICER RECOMMENDATION

That the advice responding to Item 06.22.013 be noted.

COUNCIL RESOLUTION - 07.23.004

Clancy/Johnstone

That the advice responding to Item 06.22.013 be noted and a workshop conducted prior to the March Council Meeting. [my yellow highlighting]

Voting recorded as follows

For: Clancy, Day, Johnstone, Novak, Pickering, Smith, Tiley, Toms, Whaites

Against: Nil

CARRIED

UPDATE ENDS

BACKGROUND

Clarence Valley Council Local Environmental Plan 2011 (Current version for 1 December 2022 to date) states:

Zone RU2 Rural Landscape

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To maintain the rural landscape character of the land.

• To provide for a range of compatible land uses, including extensive agriculture.

• To provide land for less intensive agricultural production.

• To prevent dispersed rural settlement.

• To minimise conflict between land uses within the zone and with adjoining zones.

• To ensure that development does not unreasonably increase the demand for public services or public facilities.

and

Zone C2 Environmental Conservation

1 Objectives of zone

• To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

• To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

• To protect coastal wetlands and littoral rainforests.

• To protect land affected by coastal processes and environmentally sensitive coastal land.

• To prevent development that would adversely affect, or be adversely affected by, coastal processes.

North Coast Voices, 

Friday, 23 December 2022

Is Clarence Valley Council finally beginning to grapple with the need to limit development on the Clarence River floodplain? at https://northcoastvoices.blogspot.com/2022/12/is-clarence-valley-council-finally.html

Friday, 16 September 2022

If the NSW Government and emergency services tell Yamba it rarely floods and its houses are safe from all but extreme flooding, are the town's residents supposed to believe them? at

https://northcoastvoices.blogspot.com/2022/09/if-nsw-government-and-emergency.html

15 August 2022

Yamba Residents Group formed in response to inappropriate overdevelopment of a flood prone small coastal town at https://northcoastvoices.blogspot.com/2022/08/yamba-residents-group-formed-in.html