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.
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‘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.
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| 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’.
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| North Lismore Plateau development. Image development assessment report |
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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