One millionaire developer within the West Yamba Urban Release Area had his latest Miles Street subdivision application refused by the Northern Rivers Regional Planning Panel. Will he now run to Macquarie Street crying foul?

 

Then Director Environment & Planning at Maclean Shire Council & now town planning consultant engaged by Kahuna No 1, Rob Donges, on the subject of the West Yamba Urban Release Area, in The Sydney Morning Herald, “Coming to this swamp – suburbia”, 19 March 2007

The Daily Examiner online masthead in use by The Daily Telegraph, 18 June 2024:

Developers have failed to convince an independent planning panel to give the go-ahead for a controversial multimillion dollar development for 248 residential lots in Yamba.

In making their assessments for the flood prone site on Miles St, the panel “considered the proposal through a risk based lens”.

The Northern Regional Planning Panel, an independent planning panel governing regionally significant development applications, denied the application for the controversial project from the developers, Kahuna 1, on Monday.

In denying the application, the panel cited flood mitigation as a major issue, including the additional fill required to develop the lot, the site being in “a high-risk flood catchment” and community concern and anxiety about the project including flooding issues, insurance costs and isolation from flooding.

The panel received a total of 57 unique submissions objecting to the development.

The panel was also not satisfied that an adequate Acid Sulphate Soils Management Plan for the development had been supplied to the Clarence Valley Council.

The determination panel was not unanimous in refusing the application, however, with three voting against the development they outvoted Penny Holloway who voted against the decision.

Members of the community from Clarence Valley to Yamba, have reacted expressing relief and hope for the future.

Clarence Valley Council Councillor Greg Clancy, who addressed the planning panel as an individual, told The Northern Star the outcome was “a well reasoned decision”.

“I’m hopeful that this is the beginning of the end of flood plain development,” he said.

Medical issues, contamination and road openings

A member of Yamba Community Action Network, Ms Helen Tyas Tunggal, also expressed the panel’s decision was a sign of the tide turning for development plans on flood plains.

“What’s happened yesterday is history making,” she said.

“The panel have actually listened to the evidence given by the residents of Grevillea Waters, the people that are living right next door to where the development is proposed, who were cut off in the floods last year, and they’re all over, 55 a lot of them don’t drive and a lot of them need medical help.”

It is noted that the Kahuna No. 1 Pty Ltd Miles Street subdivision application was submitted to the Northern Regional Planning Panel with a Clarence Valley Council recommendation for "Approval", subject to the draft conditions of consent. Gordon Merchant as sole director & owner of this registered corporation may on that basis feel encouraged to challenge the regional panel's decision or submit yet another development application on the land in question.

Whilst ever Lot 46 and 47 DP 751395 (52-54 Miles Street Yamba NSW) retain a residential zone status nothing is resolved with any finality.

BACKGROUND

The Sydney Morning Herald ,19 March 2007:

FOR 250 kilometres, the Clarence River snakes through northern NSW before it meets the coast at Yamba.

There, during heavy rain and high tide, the estuary spills its briny current over a huge flood plain just west of the town. The 340 or so hectares of salt marsh, melaleuca forest and mangrove swamp act like a giant sieve, filtering the floodwaters as they make their way into Lake Wooloweyah to the south.

Now though, the Clarence Valley Council is one vote away from rezoning the West Yamba flood plain and turning it into a busy residential area.

In a monumental decision, the council has foreshadowed dumping 270,000 truck loads of fill on the area to raise it high enough to make it habitable....

But green groups say the proposal, first mooted in 1995, will put Yamba at risk from rising sea levels, and represents a dramatic threat to the area's sensitive wetland ecology.

And even the proposal's architect, the council's environment and planning director, Rob Donges, acknowledges it is out of step with today's planning regime.

"There are acknowledged problems there. It is flood-prone, low-lying land with a high water table," he said. "We have never hidden the fact that if we were to start the process of West Yamba today there would be doubts as to whether council would proceed."

The council has not yet received the findings of a flood risk management plan, commissioned to examine the effects of altering the area's natural drainage corridors, but Mr Donges has recommended the draft local environment plan go ahead anyway.

He insists the wheel has turned too far to stop now.

"It has a long history and commitments [have been] made by the council.".....

The original 127ha West Yamba Urban Release Area (WYURA) sits on a 690ha natural flood storage plain.

This was an established fact in the early 1990s when urban settlement of this area was first mooted. It was still an established fact in 1995 when the local council adopted its Land Use Strategy.

It remained an established fact when WYURA first came into effect in 2010 with amendments to the Maclean LEP 2001 allowing the amalgamated Clarence Valley Council to house between 2,000-2,500 people on flood liable land within a reduced 121ha urban release area.

It continued as an established fact in 2015 when Clarence Valley Council confirmed its ongoing intention to allow more dwellings per hectare via manufactured housing estates and therefore more people to be settled on this floodplain within the larger Lower Clarence River floodplain.

Something then Clarence Valley Mayor and now current NSW Nationals MLA for Clarence Richie Williamson called "good news for local development". Going on to say; "There's between 950 to 1000 lots and other land owners in the area will be moving forward with their developments. It's a massive development."

It was definitely an established fact in the years from 2015 to May 2023, during which Clarence Valley Council received at least 9 large scale and 2 small scale subdivision applications on this flood liable land. 

The proposed layout of the 52-54 Miles St, Yamba subdivision within the contentious West Yamba Urban Release Area in November 2023, then comprising 277 low-density residential lots, 1 medium density residential lot, a commercial development, drainage reserves and an open space area.

IMAGE: Clarence Valley Independent, 22.11.23

This is the second reiteration of the Kahuna No. 1 Pty Ltd attempt to overdevelop this flood prone land, a 287 lot DA Sub 2023/0001 resubmitted as a 284 lot subdivision in December 2022 (comprising 277 low density residential lots, 1 medium density residential development lot, 1 commercial development lot, 1 low density development lot, 3 drainage reserve lots, 1 open space reserve lot) refused by Northern Regional Planning Panel on 17 June 2024.

The first attempt being a 310-lot subdivision application withdrawn by the Kahuna No. 1 in September 2022, before it was set to be determined by the Northern Regional Planning Panel.

YAMBA STATE OF PLAY: an example of state and local government wilful blindness that continues to this very day

A view of the lower section of Carrs Drive,
West Yamba Urban Release Area
IMAGE: Clarence Valley Independent, 7 May 2023

The original 127ha West Yamba Urban Release Area (WYURA) sits on a 690ha natural flood storage plain. 

This was an established fact in the early 1990s when urban settlement of this area was first mooted. It was still an established fact in 1995 when the local council adopted its Land Use Strategy. 

It remained an established fact when WYURA first came into effect in 2010 with amendments to the Maclean LEP 2001 allowing the amalgamated Clarence Valley Council to house between 2,000-2,500 people on flood liable land within a reduced 121ha urban release area.

It continued as an established fact in 2015 when Clarence Valley Council confirmed its ongoing intention to allow more dwellings per hectare via manufactured housing estates and therefore more people to be settled on this floodplain within the larger Lower Clarence River floodplain. 

Something then Clarence Valley Mayor and current NSW Nationals MLA for Clarence Richie Williamson called "good news for local development". Going on to say; "There's between 950 to 1000 lots and other land owners in the area will be moving forward with their developments. It's a massive development." 

It was an established fact in the years from 2015 to the present day, during which Clarence Valley Council received at least 9 largescale and 2 small scale subdivision applications on this flood liable land.

Look at that photograph again. At best, even with planned landfill this area will see 2,000+ men, women and children isolated in their homes when the road system is cut off by flood waters. 

Literally many hundreds of these residents will be retirees - with sometimes high levels of physical vulnerabilities. It is hard to see how emergency services, in a Yamba containing est. 7,000-8,000 residents by the time West Yamba is almost fully developed, will be able to cope during inundation caused by high rainfall events combining with a large riverine floods or heavy ocean storm surges.

The property developers don't care what the future holds, so it's more than time for Clarence Valley Council and the NSW Minns Government to enter emergency discussions concerning an immediate moratorium of further development in the West Yamba Urban Release Area.

In 2023 is Clarence Valley Council preparing to walk away from a drowning town?

Aerial view of a section of Yamba township precinct during flooding in 2022. IMAGE: Clarence Valley Independent

On Tuesday, 18 March 2023 Clarence Valley Council held its Ordinary Monthly Meeting.

Officially present at that meeting according to the Minutes were:

Cr Greg Clancy [Deputy Mayor], Cr Bill Day, Cr Peter Johnstone, Cr Debrah Novak, Cr Steve Pickering, Cr Jeff Smith, Cr Ian Tiley [Mayor], Cr Karen Toms and Cr Allison Whaites, General Manager (Laura Black), Director – Corporate & Community (Alex Moar), Director – Environment & Planning (Adam Cameron), Director – Works & Civil (Jamie Fleeting) and Minutes Secretary (Lee Boon).

The fourth item of business for Council In The Chamber that day was the following Notice of Motion:

Item 06.23.004 Rezoning Lands on West Yamba Floodplain

Note: Crs Tiley and Johnstone left the Chamber ahead of this motion at 2:08pm, having asserted a non-pecuniary conflict of interest existed in relation to Item 06.23.004. Both noting sitting members on Northern Joint Regional Planning Panel. Under s6.1 of the Code of Meeting Practice, the Deputy Chair became the chair in the Mayor’s absence.

MOTION

Clancy/Smith

That Council:

1. note the legal advice tabled at the February Ordinary Council Meeting that compensation would not be

payable in the event that the Department of Planning and Environment, on the recommendation of

Council, was to approve a rezoning of lands in the West Yamba Urban Release Area (WYURA) from

residential R1 to C2 or a mix of C2 and RU2 depending on the results of the planning study;

2. prepare a planning proposal for submission to the Department of Planning and Environment requesting

that the vacant land, which do not have development approvals for subdivision, in the West Yamba

Urban Release Area (WYURA) be rezoned from Residential (R1) to Conservation (C2) zoning or a mix

of Conservation (C2) and Rural (RU2) based on the impacts of further development on the environment

and the risk to human life and property from future flooding.

Voting recorded as follows

For: Clancy, Smith

Against: Day, Novak, Pickering, Toms, Whaites

The Motion was put and declared LOST

[my yellow highlighting]

To say that the writer of this post is disappointed beyond measure at this outcome is an understatement.

Those names listed as voting down the re-zoning motion, Bill Day, Debrah Novak, Steve Pickering, Karen Toms and Allison Waites, should be noted for future reference by Yamba residents & ratepayers when - as landfill proceeds apace -  the next inevitable major Lower Clarence River flood arrives.

An alternate Motion in Item 06.23.004 was put up by Cr. Day & seconded by Cr. Smith and lost. That particular risible motion all but issued an invitation to the NSW Nationals to turn any rezoning of the West Yamba Urban Release Area into both a regional and state brawl along partisan political lines in which property developers would have eagerly participated. It was voted down by Crs. Clancy, Novak, Toms, Whaites.

BACKGROUND

SUMMARY

Approved development of the Yamba floodplain under the provisions of the West Yamba Urban Release Area (WYURA) planning approval has resulted in large amounts of fill being transported to the site, particularly along Gardeners Road, Yamba Road and Carrs Drive. The constant truck movements (1 every 10 minutes), has caused great consternation among a number of Yamba residents. The large amount of fill would appear to be exacerbating localized flooding around the Carrs Drive roundabout and the area surrounding it. There is also concern that the large amount of fill is affecting, and will increasing affect, the drainage of the area, adversely affecting low lying residences and the environment.

PROPOSED MOTION

That Council:

1. note the legal advice tabled at the February Ordinary Council Meeting that compensation would not be payable in the event that the Department of Planning and Environment, on the recommendation of Council, was to approve a rezoning of lands in the West Yamba Urban Release Area (WYURA) from residential R1 to C2 or a mix of C2 and RU2 depending on the results of the planning study;

2. prepare a planning proposal for submission to the Department of Planning and Environment requesting that the vacant land, which do not have development approvals for subdivision, in the West Yamba Urban Release Area (WYURA) be rezoned from Residential (R1) to Conservation (C2) zoning or a mix of Conservation (C2) and Rural (RU2) based on the impacts of further development on the environment and the risk to human life and property from future flooding.

The eighth item of business at that 18 April ordinary council meeting was a development application for a 6 lot subdivision of an existing parcel of land in West Yamba Urban Release Area, lodged on behalf of a commercial fisher-cum-property developer. 

It was refused as per COUNCIL RESOLUTION - 07.23.050

Clancy/Johnstone

That council refuse Development Application SUB2021/0045 for the following reasons covered by

Section 4.15 of the Environmental, Planning and Assessment Act 1979:

a) The land being a wetland (Swamp Forest of Swamp Oak) making it unsuitable for the proposed development;

b) The nine submissions raised major concerns about the potential for flooding, impacts of stormwater runoff and clearing of natural vegetation.

c) The likely impacts of the development on the natural environment;

d) Impact on areas of C2 zoning for some infrastructure.

Voting recorded as follows

For: Clancy, Day, Johnstone, Pickering, Smith, Tiley

Against: Novak, Toms, Whaites

DISCLAIMER: The author of this post is a Yamba resident living alone in a single storey dwelling in a street adjoining a 20 year-old 6.65ha landfill comprising est. 90,000 cubic metres of river dredge & soil. The street is regularly cut off by riverine floodwater, or a combination of floodwater and storm water, preventing access to the town's nominal evacuation centre. The author has no independent means of leaving the town if residents are advised to do so ahead of a large flood front. In 2022 a small number of houses within this short street experienced flooding.

And the expansion of inappropriate urban development on a Northern NSW high risk coastal flood plain continues apace in 2023.....

Northern Regional Planning Panel (NRPP) now has Development Application SUB2023/0001 before it as PPSNTH-195.

A 284 lot subdivision on Lot 47 DP 751395 at 52-54 Miles Street, Yamba NSW, with a capital investment value of $48,458,741.

Composed of 277 low density residential lots, 1 medium density residential development lot, 1 commercial development lot, 1 low density development lot, 3 drainage reserve lots and 1 open space reserve lot on the est. 21.25ha lot.

This DA was lodged with Clarence Valley Council on 18 January and referred to NRPP on 30 January 2023.

It appears to be the second stage of the urban development of Lots 46 & 47 by Kahuna No 1 Pty Ltd, a property development corporation. Stage 1 is already in the process of landfilling.

Stage 1 and proposed Stage 2 now before the NRPP stretch from Carrs Drive in the west to Golding Street in the east, with Miles Street forming the northern boundary and a common property line forming the southern boundary.

These two lots are 42.5ha of the remaining natural flood storage area in Yamba which has a potential to flood to a height range of 1.6-2.0m in years when the Lower Clarence River floods and, the filling of the lots to a height above 1 in 100 flood levels will inevitably force storm & river waters onto adjoining and adjacent residential land causing it to flow into residential streets further afield.

There is one certainty with this development application - with the exception of the two local government representatives on the Northern Regional Planning Panel - the issues of climate change, changing flood behaviours and an inadequate, badly thought though emergency evacuation plan for Yamba township, will receive only lipservice consideration. Because the Perrottet Coalition Government in Sydney still insists on urban development across high risk floodplains and the Clarence Valley's retiring Nationals state member and his replacement candidate will inevitably continue playing the game of mates rather than genuinely representing the town's population.

Is Clarence Valley Council finally beginning to grapple with the need to limit development on the Clarence River floodplain?

 

Clarence Valley Mayor Ian Tiley         Deputy Mayor Greg Clancy

      IMAGES: Clarence Valley Independent

Clarence Valley Independent, 20 December 2022:

Clarence Valley Council (CVC) will seek legal opinion to see if compensation will be liable if vacant land that doesn’t have development application approval at West Yamba is rezoned by the NSW Planning Minister – a move that would limit further development.

Deputy Mayor Greg Clancy put forward the motion at the December 13 CVC meeting concerning land in the West Yamba Urban Release Area WYURA, which is predicted to increase the population of Yamba by 2000 people when development is complete.

Cr Clancy said planning approvals in Wyura requiring large amount of fill would appear to be exacerbating localised flooding around the Carrs Drive roundabout and the area surrounding it.

Following the impact of the 2022 floods, which saw Yamba cut off for several days, there is also concern that the large amount of fill is affecting, and will increasingly affect the drainage of the area, adversely affecting low lying residences and the environment.

Cr Karen Toms asked Cr Clancy whether he knew that the General Manager had already sought legal advice before he put the motion forward.

“I was aware that the Mayor had asked the General Manager to seek legal advice, I wasn’t aware that it had actually been done,” he said.

Cr Clancy said with all the issues going on in the Yamba area, council was now in a position to understand what we can do or can’t do in terms of development on the floodplain.

“We’ve had the Prime Minister and we’ve had the Premier both stating that there should be no more development on the floodplain, he said.

“However, to date we haven’t received any official notice that there’s legislation being prepared, or passed, or whatever, to do that.

“In the interim we need to determine councils’ position in relation to development on the floodplain and West Yamba is our largest area where we have potential development on the floodplain.

“All this motion is doing is seeing whether council or the ratepayers would be liable if we go down the path of applying for a rezoning of land which has been zoned under the Wyura as residential, back to rural, and or a mixture maybe of rural and conservation, because there’s some important conservation areas in that area.

“Once we get the legal opinion, council would be in a much better position to consider what action we want to take.

“If we put a rezoning application in, we would need to know if the council and the ratepayers would be liable to any compensation.”

Mayor Ian Tiley said he and General Manager, Laura Black had discussed the matter a number of times and council was awaiting legal advice on rezoning.

Cr Steve Pickering said he would be supporting the motion as the community wanted to see action not just in Yamba, but on the floodplain generally.

“This is a question that has been asked many times of me and I think it’s prudent for us as a council to actually seek legal advice,” he said.

Cr Karen Toms said she would not be supporting the motion as it was ‘a what if question’.

“To me it’s a speculation in itself because we’re asking a lawyer to say well if the government decides to come in and change the zoning of privately owned land will we need to pay compensation,” she said.

“I would rather see this put on hold until we actually get the information back.”

Cr Bill Day said he believed the motion endorsed the actions of the Mayor and the General Manager to seek legal advice on rezoning land at West Yamba.

In the motion put forward by Cr Greg Clancy and seconded by Cr Jeff Smith council resolved to seek a legal opinion as to:

1. 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

2. Whether compensation becomes liable if land previously approved for the importation of fill was to be similarly rezoned;

3. Whether there are any other legal implications of such an action.

The motion was carried 7-2 and supported by all councillors except Cr Karen Toms and Cr Allison Whaites.