On 28 February 2022 life changed forever for the Lismore community as an extreme flood swept away much of what they loved about their lives in that corner of the NSW Northern Rivers region.
That closet National Party acolyte, the Mayor of Lismore City Council, cemented that change by ceding residents and ratepayers' rights - to a hastily created Northern Rivers Reconstruction Corporation (NRRC).
The Perrottet Coalition Government then made sure that the control that was being handed over to land speculators, the construction industry and its lobbyists, could not be resisted. It did this by creating and passing into law on 28 November 2022 a piece of state legislation which allows the NSW Planning Minister to override all existing state planning laws & regulations, as well as all environmental and cultural protections currently afforded to land in this state.
Just eleven days later, it looks suspiciously like the first local landgrab will be by the Witten Property Group assisted by planning consultancy, Planners North, who are continuing to progress discredited subdivision plan/s in order to take advantage of the free pass Perrott has given to their ilk.
A free pass on largescale land development - which would otherwise have to make a detailed case to gain consent to clear fell forest cover, pollute land, damage waterways and eradicate wildlife possibly to the point of local extinction - with no other aim than to make as much money as possible.
Echo,
8
December 2022:
A view of the North Lismore Plateau. Photo Darren Coyne.
The
development of 742 residential lots, two neighbourhood business lots
(super lots), one residue lot (future residential) and 45 new roads
on the North Lismore Plateau (NLP) has been recommended for refusal
by the Lismore City Council (LCC) assessment. There is no affordable
or social housing component within the development.
The
decision on the development application (DA) will be made by the
Northern Rivers Planning Panel (NRPP) on 15 December as the proposal
has a capital investment value of more than $30 million.
‘The
NLP development proposed by a coalition of land owners is the single
biggest DA in Lismore since the subdivision of Goonellabah,’ said
Al Oshlack who has been working with Bundjalung man Mickey Ryan on
the impact of development on the NLP for over ten years.
The
Council development assessment report highlights the failure of the
developer to respond to a number of issues raised at the formal
pre-lodgement meetings with Council on 11 December 2018 and 25 March
2021.
‘Formal
minutes of the meeting were provided to the applicant that provided
an outline of the technical reports required and matters to be
addressed in any future development application to be lodged with
Council. Many of the issues initially raised in the pre-lodgement
meeting(s) remain outstanding,’ states the assessment.
The
site for development sits in the drinking water catchment the Rous
County Council (RCC) ‘recommended that the stormwater treatment
regime be designed with consideration the development is located
within a water supply catchment and that a neutral or beneficial
effect on water quality test be applied to any proposed stormwater
management approach’. However, the developers failed to provide the
required information and ‘[T]his aspect of the application remains
outstanding,’ stated the report.
 |
North Lismore Plateau development.
Image development assessment report |
Filling
in a watercourse
The
proposal to completely remove and fill and pipe a second-order
watercourse was a key issue for the NSW Natural Resources Access
Regulator (NRAR) NRAR. They stated that ‘[T]he removal of a 2nd
order watercourse is not consistent with NRAR guidelines and is not
supported by NRAR. NRAR has requested that the subdivision layout be
amended so as to maintain this 2nd order watercourse and associated
riparian zone in accordance with NRAR guidelines’.
While
only a small area of the site is affected by the 1 per cent AEP flood
event with a level of 12.9m AHD the report concludes that ‘additional
commentary considering the February 2022 floods is still required to
afford whether matters need to be redressed and or any significant
variances arise out of reviewing the context of that flood to those
previous.
Mr
Oshlack told The Echo that ‘parts of the development on the Dunoon
Road floodplain was inundated in the 2022 February/March floods’.
 |
North Lismore Plateau development.
Image development assessment report |
Aboriginal heritage
The
impact on Aboriginal Cultural Heritage was a ‘significant shortfall
with the application’. The independent review of documentation
provided for the DA was done by Mr Neville Baker of Baker Archaeology
who summarised that the ‘material fails to meet Council’s
statutory requirements in fulfilling due diligence’. The DA also
failed to address the impact on Aboriginal cultural heritage under
the local environment plan (LEP) in relation to areas of ‘high
ecological, scientific, cultural or aesthetic values’ and to ‘ to
conserve archaeological sites.. [and] places of heritage
significance’ among others.
Lack
of service supply
For
any new development, the supply of water and sewer facilities are
essential. However, the site currently has no infrastructure for
these in place. The report states that there ‘is insufficient
information in regard to the provision of the supply of water and
reticulated sewer for Council to be satisfied that the proposed
development complies’.
A
development application (DA) for ‘742 Residential Lots, 2
Neighbourhood Business Lots, 14 Public Reserves, and 1 Residual
Residential Lot for future development has been proposed for the
North Lismore Plateau.
Significant
earthworks
To
achieve the development significant earthworks are required and
issues of the impact on neighbours, the local environment and water
catchment were raised.
‘There
is insufficient information provided to determine whether the
application will not have a detrimental impact on environmental
functions… It its current form, it is likely that the proposed
development will have: a detrimental effect on, drainage patterns and
soil stability in the locality of the development adverse impacts on
waterways, Wilson River drinking water catchment and environmentally
sensitive areas,’ it states.
An
Engineering/Traffic/Stormwater Drainage review by council’s
development engineer states that ‘given the significance of the
outstanding engineering issues that remain to satisfy them, a
substantial redesign of the development is required’.
Fire
The
developer has sought to have the proposed perimeter for fire risk
managed by ‘individual management of a perimeter fire access
track’. However, ‘The NSW RFS was unable to support this notion
stating that the individual management of a perimeter fire access
tracks will not provide a consistent on-going management but rather
an ad-hoc haphazard management regime that will render the perimeter
fire trails in-accessible.’
Issues
were also raised with the impact on increased traffic on Dunoon Road
with council stating that they are ‘not satisfied that the safety,
efficiency and ongoing operation of the classified road will not be
adversely affected’.
The
Biodiversity Conservation Act (BAM) 2016 requires a Biodiversity
Development Assessment Report (BDAR) if a development is ‘likely to
significantly affect threatened species’. They said that the BDAR
was no longer available therefore ‘the BAM Credit calculations
cannot be assessed’ and that ‘Issues pertaining to Part 7.8 of
the BC Act remain outstanding.’
‘Council
raised serious grounds which campaigners have been representing for
years such as biodiversity, flooding and cultural heritage not to say
the 10,000 plus car movements per day predicted for Dunoon Road,’
explained Mr Oshlack.
‘Mickey
Ryan who steadfastly opposed over the last 10 years, Council’s
support for the development, should be recognised for his courageous
foresight to shoulder, not only protection of his Wiyabal cultural
identity but relieving our community of a potential multi-million
dollar blackhole debt.’
BACKGROUND
Land
and Environment Court of NSW Judicial Newsletter: June
2020 Vol 12 Issue 2:
*my yellow highlighting throughout*
Ryan
v Northern Regional Planning Panel [2020] NSWLEC 55 (Pain J) Facts:
Mr Ryan (applicant), a Bundjalung elder living in North Lismore,
commenced civil enforcement proceedings challenging the decision of
the first respondent, the Northern Regional Planning Panel (Panel) to
approve a subdivision on part of the North Lismore Plateau and a
construction certificate (CC) issued by the Second respondent,
Lismore City Council (council). All respondents other than the Third
respondent, Winten (No 12) Pty Ltd (Winten) (the developer), filed
submitting appearances. Issues: (1) Was a Species Impact Statement
(SIS) required to be lodged before determination of the development
application (DA) by the Panel under s 78A(8) of the Environmental
Planning and Assessment Act 1979 (NSW) (EP&A Act); (2) Did a
breach of the Heritage Act 1977 (NSW) (Heritage Act) occur when the
potential for a relic existing, being an inferred gravesite, was dug
up without an excavation permit; and (3) Was the CC for work on a
road and earthworks invalid because no development consent for the
work had been given. Held:
Applicant successful on the SIS ground; declaration made that the
development consent granted by the Panel was invalidly made, void and
of no effect:
(1)
At the time the DA was lodged, s 78A(8)(b) of the EP&A Act was in
force which required that a SIS be prepared
to accompany a DA if development was likely to significantly affect
threatened species, populations
or their habitats. The likelihood of significance was to be
determined by reference to the seven-part
test in s 5A(2) of the EP&A Act (s 5A(2)(a), (d) and (g) were
identified by ecologists as relevant in this case): at [142]-[143].
Whether or not a SIS was required was a question of jurisdictional
fact which the Court had to decide for itself on the evidence before
it, per Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46
NSWLR 55; [1999] NSWCA 8: at [144]. The consideration of relevant
factors was not limited to those in s 5A(2), that list not being
exhaustive per BT Goldsmith Planning
Services
Pty Limited v Blacktown City Council [2005] NSWLEC 210 (BT Goldsmith)
at [12] and Friends of Tumblebee Inc v ATB Morton Pty Ltd (No 2)
(2016) 215 LGERA 157; [2016] NSWLEC 16 at [82]: at [145]. The
Threatened Species Assessment Guidelines (Guidelines) were a
mandatory relevant consideration in the assessment of impact by
virtue of s 5A(1)(b) and (3) of the EP&A Act:
at
[148]:
(a)
Key threatening processes: Under s 5A(2)(g) of the EP&A Act and
as identified in evidence by expert ecologists, nine key threatening
processes (KTPs) in relation to the white-eared monarch and 11 KTPs
in relation to the eastern long-eared bat were likely to be
exacerbated by the development: at [149];
(b)
Application of “study area”, “local population” and
“locality”: In applying s 5A(2)(a) and (d) of the EP&A Act
and the Guidelines, Winten’s argument that “study area”
required additional areas to be considered because a local population
of both species could exist beyond the developable footprint was
circular in construction and application. The subject site was the
location of the proposed development and “study area” meant the
area likely to be affected by the proposal including the subject site
and additional areas adversely affected directly or indirectly: at
[156]. The applicant’s approach to “study area” was preferred
which looked generally at the site of the development with
consideration of the land immediately adjoining the site: at [160];
(c)
Mobility of species: Further informing the application of s 5A(2)(a)
and (d), the ecological evidence gave rise to the inference that the
site
of the development was the centre of habitat for a local population
of the eastern long-eared bat which did not range widely from its
roosting site when foraging:
at [166]-[167]. A
breeding pair of white-eared monarchs, a sedentary species, used the
site of the development and the land immediately adjoining, ranging
only 10 to 15 hectares:
at [168]-[169];
(d)
Removal, modification, fragmentation and isolation of habitat: The
extent of habitat removal necessitated by the development was
substantial: at [181]. Fragmentation
of habitat was to occur
given
the large area of vegetation to be cleared by the development:
at [183]. Proposed improvements to vegetation quality would take a
substantial time to occur. Habitat to be cleared would have otherwise
been permanently occupied and used at all stages of both species’
lifecycles: at [184];
(e)
Adverse effect on lifecycle of viable population: On
the evidence before the Court, the development and consequent loss of
habitat was likely to have an adverse impact on the lifecycle of both
species so
as to place them at risk of extinction:
at [192], [195];
(f)
Cumulative impact: Cumulative loss of habitat of threatened species
had to be considered in determining whether there was likely to be a
significant impact on threatened species: at [197];
and
(g)
Precautionary approach: A precautionary approach to consideration of
whether a SIS was necessary was required per BT Goldsmith at
[68]-[73] and the Guidelines: at [145], [198].
In
conclusion, adverse impacts were likely to occur and be significant
for both species.
A SIS was required in order to comply with s 78A(8) of the EP&A
Act: at [198]-[199];
(2)
The applicant alleged that Winten had reasonable cause to suspect
that it had discovered a relic within
the
meaning of s 139 of the Heritage Act in the form of an inferred
gravesite, meaning its actions in excavating the inferred gravesite
were unlawful as an excavation permit was required: at [202]. The
inferred gravesite was first detected in reports prepared as part of
the development approval process:
at
[239]. Winten engaged a different company to that which had
originally detected the inferred gravesite to do the excavation work:
at [241]:
(a)
Role of police: The strong inference arose that but for the request
of the Lismore police Winten would not have engaged a company at all
to do the excavation work: at [244]. The statutory Scheme was unclear
in that if Ch 5 of the Coroners Act 2009 (NSW) (Coroners Act)
applied, the Heritage Act permit provisions were rendered
inapplicable. The Coroners Act was not relied on.
Investigation
of some sort may well be required to determine if the Coroners Act
applies which work the
Heritage Act regulates: at [245]. The role of the police in
requesting that the work be done was irrelevant
to whether s 139(1) of the Heritage Act was breached but was a clear
exculpating circumstance for Winten: at [244], [249]; and
(b)
Breach of Heritage Act: On the evidence, before the excavation work
commenced Winten had reasonable cause to suspect a relic may have
been present, and in engaging a company to do the excavation work
acted in breach of s 139(1) of the Heritage Act.
A request from the police alone to do excavation work did not
overcome the requirement to obtain an excavation permit when there
was reasonable cause to suspect the presence of a relic: at [247],
[249].
In
the exercise of discretion, the circumstances of the excavation
suggested no declaration of breach ought to be made and the remedial
relief sought by the applicant was unwarranted: at [249]; and
(3)
The applicant alleged that no development consent or CC approval was
granted for work on a “haul road” and that a “borrow pit”
approved in the CC was not approved in the development consent,
making the CC inconsistent with the development consent: at [301]:
(a)
Road: References to a “haul road” in the CC were to “Road 1”
plans approved with an earlier development consent granted in 2016
and amended and incorporated into the development consent issued in
2018 (2018 DC) by way of conditions of consent: at [304]. The CC was
not inconsistent with the 2018 DC: at [305]; and
(b)
Borrow pit: The CC permitted the construction of the borrow pit
meaning there was no relevant inconsistency between the development
consent plans and the CC. That the words “borrow pit” were not
used in certain plans did not give rise to inconsistency as
identified in Burwood
Council
v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404
at [147]: at
[307].
As
there was no relevant inconsistency, whether the CC should be
declared invalid did not arise: at [308].
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