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

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.

Around the traps on the Northern Rivers in November 2022

 

Clarence Valley Independent, 2 November 2022:

Yamba’s primary water supply switched

A hydrographic survey has been completed along the riverbank from the northern edge of Maclean to the Harwood Bridge to assess the risk of riverbank erosion affecting the water mains servicing Yamba.

Water mains run along both sides of Yamba Road, and Council has switched its main supply to the less vulnerable pipeline on the inland side of the road.

The pipeline on the river side will continue to be maintained as a back-up.

NSW Environmental Protection Agency (EPA), media release, 2 November 2022:

Northern Rivers residents and small businesses will be able to access flood support with a new NSW Environment Protection Authority (EPA) program supporting the management of contaminated lands following the devastating floods in early 2022.

NSW EPA Chief Executive Officer Tony Chappel announced the new program in Lismore and said the EPA is committed to doing all it can to help the region recover.

“Our role at the EPA is to protect the community and environment, and this program is about ensuring contaminated land is addressed so people have peace of mind about their land,” Mr Chappel said.

“I cannot begin to imagine how hard it has been for the community to return home after the flooding only to face a painstaking clean-up.

“We want to give Northern Rivers communities who have made that extraordinary effort the certainty that the land they live on is healthy and safe.

“This program will provide free, independent assessments for eligible properties, which will reveal if soils have been contaminated.

“If a property is deemed to be contaminated, we will also provide landholder assistance in cleaning-up soils and returning the environment to the best state possible.

“I want to thank all our EPA officers who have been working with other agencies to remove waste and debris from across the region.

“The volumes have been enormous and in the past week alone, we have removed 261 cubic metres of debris from our waterways, equal to that of three semi-trailer trucks.

The funding will also support the seven eligible councils (Lismore, Richmond Valley, Ballina, Kyogle, Tweed, Byron, Clarence) to assess any flood contamination to public areas as well as providing resources to manage contamination from future natural disasters.

The NSW EPA runs a number of programs to help regions impacted by floods, with the Shoreline Clean-up Program removing more than 17,800 cubic metres of flood debris from waterways in an area extending from the Queensland border to the Illawarra.

The Flood Recovery Program for Contaminated Lands is jointly funded by the State and Commonwealth disaster recovery funding agreement (DRFA). Residents can now apply on the Service NSW website.

The EPA has also launched an interactive visual flood debris map which demonstrates the scale and scope of the clean-up effort, as well as sharing stories from the community and EPA officers.

So why did the NSW Perrottet Government compose and compile those documents in the 2021 "Flood prone land" package if its regional planning panels are allowed to play fast and loose with the package provisions when considering large scale-large dollar value developments?

"NSW Premier Dominic Perrottet has vowed his government will not repeat “the mistakes of the past” in allowing development on floodplains that risks lives and property." [NSW Premier and Liberal MLA for Epping Dominic Perrottet, Financial Review, 22 July 2022]

"the days of developing on floodplains in the state were over" [NSW Premier and Liberal MLA for Epping Dominic Perrottet, AAP 28 October 2022]

Yamba, New South Wales, known to have a permanent First Nations settlement before 1799. Land area is enclosed by Pacific Ocean, Clarence River, Oyster Channel and Lake Wooloweyah. A coastal land corridor to the east of the lake approx. 1.12km wide and 1.13km long anchors Yamba & environs to the NSW mainland. IMAGE: Google Earth, October 2021

On 26 October 2022 Hometown America LLC through its subsidiary Hometown Australia received development consent from the NSW Northern Regional Planning Panel for DA2021/0558, 8 Park Ave Yamba, Multi-Dwelling Manufactured Housing (136 dwellings, clubhouse, community facilities for the over 50s).

This development consent was a split decision 3 to 2 – with the three permanent panel members Paul Mitchell, Steven Gow & Penny Holloway (or alternate) voting down the serious concerns held by the panel’s two local government area members, Clarence Valley Council Mayor Ian Tiley and Deputy Mayor Greg Clancy.

NOTE: Northern Rivers Planning Panel (NRPP) is constituted for local government areas of Armidale Regional, Ballina, Bellingen, Byron, Clarence Valley, Coffs Harbour City, Glen Innes Severn Shire, Gunnedah, Gwydir, Inverell, Kempsey, Kyogle, Lismore City, Liverpool Plains, Moree Plains, Nambucca, Narrabri, Port Macquarie-Hastings, Richmond Valley, Tamworth Regional, Tenterfield, Tweed, Uralla and Walcha.

Around 42 concerned Yamba residents – plus representatives of YambaCAN and Valley Watch, along with NSW MLC Cate Faehrmann and Yamba residents CVC Crs. Debrah Novak & Karen Toms – were online for this NRPP virtual public meeting.

Of those Yamba and Northern Rivers residents who had registered to speak at the meeting not one voiced support for the creation of this manufactured home estate. In fact the only persons appearing before the panel who supported this development were council staff and those employed by or representing the interests of Hometown America LLC – the most egregious of which was Bewsher Consulting Pty Ltd.

As an online observer of that meeting it is my opinion that neither Hometown Australia nor Clarence Valley Council staff offered solid proof that the planned development:

(i) “will not adversely affect the environment in the event of a flood”;

(ii) as “senior housing” did not fall within the existing Department of Planning, Industry and Environment category of “Sensitive and Hazardous Development”;

(iii) was not within one of those “areas with evacuation limitations”;

(iv) by adding another 136 dwellings to the existing 4,073 residential dwellings within town precincts [ABS, 2021] would not be increasing overall dwelling densities which would have “a significant impact on the ability of the existing community to evacuate using existing evacuation routes within the available warning time”. [DPIE, “Considering flooding in land use planning; Guideline”, July 2021]

In fact there is a strong possibility that this development is/will cause/contribute to all those matters found in the aforementioned (i) to (iv) list.

On completion of construction 8 Park Ave will be Hometown America’s sixth site in the Northern Rivers region – bringing its land lease sites in Yamba to two manufactured homes estates.

It will also increase the Yamba population by between 136 and 272 people over 50 years of age, in a town where 57.50% of the population are already aged 50 to 85 years of age and older [Australian Census, August 2021].

This development will also increase the population in the 0.37sq.km SA1 statistical precinct it lies within – from 654 persons to between 790–926 persons depending on number of occupants per dwelling at 8 Park Ave. 

Note: This statistical precinct is bounded by sections of Park Ave, Wattle Drive, Gumnut Road, The Links, The Mainbrace, Shores Drive and Yamba Road and currently contains more than 200 houses, townhouses and apartments/units. Along with one childminding centre and one motel [maps.abs.gov.au, 2021]

The current dwelling density within town boundaries is est. 345.7 per sq. km. It is not outside the realms of possibility that over the next 28 years dwelling density may rise as high as >400 per sq. km, given the cumulative effect of land release zoned for or under residential development elsewhere in Yamba. [IDcommunity: Demographic Resources, Clarence Valley Council Social Atlas, 2021]  

Sadly, it will also add to Yamba’s climate change risk as it places more pressure on the town’s only evacuation route in times of flooding-storm water inundation or storm surge. A route which has repeatedly failed during previous flood events given the number of locations floodwater cuts Yamba Road within township boundaries and beyond.

Over the course of the next 28 years the NSW Government’s so-called strategic planning for regional urban expansion apparently intends to increase the population of Yamba & environs by at least another 4,000 men, women and children.

They will all still be expected to travel along this road during high rainfall events, storm surge and/or flooding.

Yamba Road heading towards Oyster Channel Bridge, March 2022, IMAGE: March 2022, YambaCAN

Cross this bridge

Oyster Channel bridge linking Yamba with the wider Clarence Valley
IMAGE: March 2022,  supplied

And traverse causeways across two other river channels – the first of which is frequently cut during major flood events. 

This journey is the only option in any effort to find dry land and safety in the wider Clarence Valley, which itself would have been flooding for days ahead of any emergency services advice to evacuate all or part of Yamba township.

Yamba Road itself is a two lane undivided road carrying between 10,000 t0 17,000 vehicle movements a day as it crosses over Oyster Channel [Transport NSW July 2021]. Within town limits the road currently experiences est. 10,573 vehicle movements a day in the vicinity of its intersection with Treelands Drive and it has AM and PM peaks of 750 veh/hour for traffic travelling in both directions. The expectation it that traffic volume on Yamba Road is growing 3.5% annually [Geolink, March 2022].

This main road varies between 1.4mAHD and 2mAHD in height which mean it can be cut by flood water in one or more of at least five points along its length within the town before Oyster Channel bridge and a number of points after the bridge along that section from Micalo Island to Maclean township limits. This road can be inundated somewhere along its length in 1 in 10 ARI and greater flood events. 

Reading the little that is written by local and state governments, emergency services and property developers about emergency evacuation from Yamba, it appears that from now into the foreseeable future the entire town population of est. 6,405 men, women and children along with the town's visitor population which can range anywhere between a few hundred to thousands of holidaymakers, are expected to immediately respond to advice to evacuate the predominately low-lying areas of the town.

Even on a fine day without the river in flood, with Yamba on the move in est. 4,180 vehicles accompanied by an untold number of visitor cars (some towing caravans or boats) on that one westbound lane of a two lane road, just how long would it take to first clear the town limits and then continue on that approx. 19km stretch of Yamba Road to reach Maclean or the turnoff to the Pacific Highway? In a high rainfall event with advice to evacuate ahead of a major flood? I suspect that there would be multiple intersection traffic snarls within the first hour.

An evacuation situation which is not supposed to be allowed to develop under official planning policies, guidelines, orders and directions found in the NSW Government “Flood prone land package”.

As an alternative to a closed evacuation route heading out of town, in a major flood local residents are expected after registering at the Bowling Club to head for the only high ground in Yamba – Pilot Hill and environs.

A hill with the Pacific Ocean at its foot. A hill historically known for increased groundwater levels during days of sustained rain or heavy rainfall events. Events which have been associated with land slumping, scouring, earthslides, earthflows and landslides on the marginal stability slopes.

A hill with a mapped landslip risk area which includes much of the community land/open space available to persons seeking safety during times when there is widespread flooding in the low-lying residential sections of the town.

The highlighted area shows Crown land/community land & properties in the Yamba landslide risk zone, as defined by Clarence Valley Council in March 2017

So how big a burden can this hill physically carry when it comes to evacuees? There is no answer to that question that I can find. Perhaps the question is yet to be asked by federal, state and local government or emergency services.

All I know is that even if one only calculated on the basis of average body weight of 3,000 adults [ABS 2011-12] and average unladen weight of 750 full-sized sedan motor vehicles [AuotChimp 2022], then a mass evacuation of less than half the resident population to Pilot Hill and environs and congregating there on community land in the absence of sufficient emergency accommodation, this would place an additional surface weight stress of est. 1,560 tons. A weight which would be moving and vibrating not only on the geologically safe section around the water tower but also on land having marginal stability in adverse weather conditions.

I cannot state my opinion any clearer than this – any large scale emergency evacuation of the Yamba population is highly likely to fail because of city-centric policymakers basic lack of informed understanding of vulnerabilities in the local road network, continued bad urban development planning loading a higher population into a town known to become isolated in natural disasters and, insufficient understanding of changing sea rise, storm surge and flood behaviours. Lives will inevitably be lost if or when situations become catastrophic.

 

BACKGROUND

Hometown America LLC is a residential land lease company operating over 60 manufactured home sites in the U.S. styled as affordable housing.

The corporation is headquartered in Chicago, Illinois, and has two business divisions – the Hometown America Family Communities and Hometown America Age-Qualified (55+) Communities.

Its current CEO/President is Richard Cline.

Hometown America has been the defendant in multiple legal actions principally brought by individuals and groups of individuals who were residents in its U.S. land lease-manufactured home sites.

Hometown America is the parent company of Hometown Australia headquartered in Queensland and when it was establishing itself in Australia was composed of the following entities:

A.C.N. 626 522 085 Pty. Ltd – registered in NSW on 31 May 2018

Hometown Australia Management Pty Ltd (ACN 614 529 538 )

Hometown Australia Nominees Pty Ltd (ACN 616 047 084) atf Hometown Australia Property Trust (Hometown).

Through its Australian subsidiary Hometown Australia this U.S. corporation currently operates est. 51 sites in Queensland, South Australia and New South Wales, marketed as affordable housing and lifestyle living for the over 50s. Including 4 sites in the Northern Rivers regions.

Hometown America’s land-lease sites in NSW are governed by the provisions in the Residential (Land Lease) Communities Act 2013.

Real Estate agents Kevin Tucker and Stuart Long appear to be joint managing directors of Hometown Australia.

In the first financial year Hometown America LLC was operating in Australia 2019-20 its local arm Hometown Australia Holdings Pty Ltd declared an income of $185,480,667 with no taxable income and no taxes paid. In 2020-21 its second financial year its local arm declared  $314,117, 781 in income with no taxable income or tax paid. [Australian Taxation Office, Data Sets, Corporate Tax Transparency, Report on Entity Tax Information 2019-20 & 2020-21]

Hometown Australia is gaining a similar reputation to its U.S. parent company when it comes to resident’s complaints and concerns about its business practices – particularly in relation rent increases and poor maintenance of community facilities [media report 2020, media report 2021 & media report 2022].

YAMBA 2022: There is an eerie fascination in watching a regional planning panel, the local council & property developers argue the case for new large subdivisions in a town which is drowning. How many people have to die before all three tiers of government turn and face the realities of climate change?

"The climate of NSW is changing due to global warming. The effects of climate change on the people and environment of NSW are expected to become more pronounced as the climate continues to change over this century." [NSW Environment Protection Authority (NSW EPA) 2021]

In or around 2021 the Australian Bureau of Meteorology (BOM) published a table of monthly sea levels for Yamba, a small coastal town in north-east NSW, for the years 1986 to 2020.  

Included as a footnote to this table was the following 

information:

Statistics 

Mean sea level = 0.952 (Average monthly means = 0.951) Maximum recorded level of 2.330 metres at 0900 hours 23/05/2009 Minimum recorded level of -0.138 metres at 1500 hours 02/11/2002 Standard deviation of the observations = 0.3949 metres Skewness = 0.1464

[my yellow highlighting]

The CSIRO "State of the Climate Report 2020" observed that sea levels are currently rising at 3.5 cm (0.035m) per decade. While NSW EPA "NSW State of the Environment Report 2021" stated that the states sea level was 3.5mm (0.035) and rising, with the Port Kembla gauge showing a mean sea level rise of around 10cm (0.1m) since 1991. 

So what does that sea level creep mean for Yamba, a town only two months away from possibly entering a fourth calendar year of increased rainfall exacerbated by La Niña events? A

 town which has experienced Lower Clarence River floods in

 December 2020, March & December 2021 and February-

March 2022. A town situated in a coastal estuary zone within

 the south-east quarter of the Australian mainland and,

 therefore with a recognised high risk of ocean warming/rising

 sea-level. [ NSW Government, Adapt NSW, 2022]

Using the latest inappropriate development application for 6.65ha in the middle of the town - currently before Clarence Valley Council and the Northern Regional Planning Panel - as a constant point the following maps show how rising sea height in the ocean off Yamba may affect local residents.

8 PARK AVE, YAMBA aka PARKSIDE OVER 50s LIFESTYLE COMMUNITY

With a sea-level rise compounding increased rainfall this is potentially what Park Ave and surrounding streets will look like in another 10-30 years at a mean sea-level which has increased by another est. 3.5cm to 10.5cm.

2030: an approximation of the effect of an expected sea-level increase of 3.5cm above 2020 Yamba mean sea-level

https://coastalrisk.com.au/viewer
Click on image to enlarge

North Coast Voices readers will notice that in 8 years time sea water is across Park Ave-Shores Drive intersection for metres, the one road "Parkside" residents can use to leave the lifestyle complex. This possibly will occur at high tide

 each day.

2050: an approximation of the effect of an expected sea-level increase of 10.5cm above 2020 Yamba mean sea-level

https://coastalrisk.com.au/viewer
Click on image to enlarge

By 28 years time in 2050 the lifestyle complex is still relatively intact but has no road access to the rest of Yamba, given the entire length of Shores Drive is under water. The local shopping mall is inundated. Police and ambulance cannot enter the lifestyle village from its single access road. 

In the decades after 2050: an approximation of the effect of a projected sea-level increase of 1.5m above 2020 Yamba mean sea-level

https://coastalrisk.com.au/viewer
Click on image to enlarge

Sometime after 2050 "Parkside Over 50s Lifestyle Community" becomes an ephemeral tidal island in an enlarged estuary.