On 17 June 2024 the NSW Parliament Legislative Council's Portfolio Committee No. 7 - Planning and Environment Inquiry into "Planning system and the impacts of climate change on the environment and communities" held a hearing at which representatives of community organisations" Yamba Community Action Network Inc and Valley Watch Inc gave evidence.
Because mainstream media by necessity will not have the column space to address the issues raised in depth, here is the full transcript of evidence given by Lynne Cairns and Helen Tyas Tunggal on the day.
Note: This is an uncorrected copy of the transcript retrieved from the Portfolio Committee No. 7 webpage on 23 June 2024.
The CHAIR: Welcome to the eighth hearing of the Portfolio Committee No. 7 – Planning and Environment inquiry into the planning system and the impacts of climate change on the environment and communities. I acknowledge the Gadigal people of the Eora nation, the traditional custodians of the lands on which we are meeting today. I pay my respects to Elders past and present, and celebrate the diversity of Aboriginal peoples and their ongoing cultures and connections to the lands and waters of New South Wales. I also acknowledge and pay my respects to any Aboriginal and Torres Strait Islander people joining us here today.
My name is Sue Higginson, and I am the Chair of the Committee. I ask everyone in the room to please turn their mobile phones to silent. Parliamentary privilege applies to witnesses in relation to the evidence they give today. However, it does not apply to what witnesses say outside of the hearing, so I urge witnesses to be careful about making comments to the media or to others after completing their evidence. In addition, the Legislative Council has adopted rules to provide procedural fairness for all inquiry participants. I encourage Committee members and witnesses to be mindful of those procedures......
Mrs LYNNE CAIRNS, Secretary, Yamba Community Action Network Inc, affirmed and examined
Ms HELEN TYAS TUNGGAL, Member, Yamba Community Action Network Inc, affirmed and examined
The CHAIR: Welcome back. Thank you for making the time to come and give evidence today. Would either of you like to start with a short opening statement?
LYNNE CAIRNS: Yes, I would. Thank you for the opportunity to provide evidence to this meeting. I would like the folder previously provided to the Committee to be tabled, please, along with a document that I will be summarising. On behalf of Yamba CAN, the information I provide is a summary of what has been recently occurring in the Clarence Valley Council LGA in relation to concerns with processing of development applications on the Yamba flood plain. I won't be reading directly from that document because I have summarised it. Helen will then provide historic information.
Firstly, it appears there is a systemic problem whereby stakeholders in the development application and planning process are predisposed to favouring approval of developments. It appears that council is inclined to accept what a developer provides and presumes in a DA without fully considering and assessing the impacts on existing residents and whether an adequate evacuation plan is in place. About three-quarters of the township of Yamba is on the flood plain, a delta of nearly 690 hectares. Yamba has a population of about 6,500 people. In February 2022 Yamba residents on the flood plain woke and, without warning, the only evacuation route, Yamba Road, was closed by stormwater flooding, along with many other internal roads closing or closed. The M1 to Yamba township is about 16 kilometres. Homes on the Yamba flood plain were flooded by stormwater—and some with sewage—that have never been previously flooded. The Clarence River flood crest reached Yamba about two days later and inundated and flooded homes again.
Last week the Northern Regional Planning Panel met to determine a proposed development, Yamba Gardens, for a 284 small lot subdivision on the flood plain down Carrs Drive requiring more fill. Last month, in a council meeting, councillors passed a resolution voting five to two in favour of council making a submission to the panel to not support this proposed development. The resolution was based on council's assessment report that was over a year old and contained some 22 noncompliance and unresolved matters. Then, seven days later, on 4 June 2024, council's up-to-date assessment report recommended approval of the subdivision. Councillors were not provided an up-to-date assessment report for a very important decision. Submissions objecting to the development totalled 328, and two votes for the development. People had two weeks to review 38 documents and 1,750 pages, and 12 people addressed the panel objecting to the development being approved.
The development's documents and council's assessment report provide that the proposed development complies with the required planning instruments. However, upon close scrutiny of the documents there were anomalies, errors and contradictions, and totally overlooked was the stormwater flooding. For example, council requested the evacuation plan for the development to address clause 5.21 (2) (c) and (d) of council's local environment plan. The clause reads:
(2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—
…
(c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and
(d) incorporates appropriate measures to manage risk to life in the event of a flood …
The evacuation plan does not address 5.21 (2) (c) and (d) because it did not take into account stormwater flooding. The Flood Risk Management Manual recommends councils collect data and review flood behaviour after flood events to capture lessons learnt. Council did not collect post-flood data in Yamba in 2022.
The plan states the development proposal will not exceed the capacity of existing evacuation routes for the surrounding area in the event of flood, yet then states the capacity of Yamba Road is the constricting factor during an evacuation. Council's assessment report—it actually says it has considered acceptable, noting capacity of the evacuation routes and warning times and then states it meets 5.2 (1). The plan states, "The flood evacuation centre is the bowling club." It further states, "The club has not been assessed for its suitability for the number of people the club may be able to support and the plan assumes sufficient capacity can be made available." This contravenes clause 5.2 (1) and residents couldn't even reach the bowling club because the roads were closed. These developments will be isolated mound islands in flood events.
The calculation of people on the flood plain requiring evacuation in the plan is incorrect. It is not 6,396; it is 8,618 people. The figures in the plan have not been properly calculated. Also, the current approved and proposed dwellings on the flood plain is not 570; it is 1,329. The plan states Yamba has an older population: 32 per cent are aged 65 and over. One existing manufactured housing estate has over 200 residents and the average age of residents is mid-seventies. The plan doesn't even acknowledge this estate and it is next door to it. The estate has one road in and one road out and was cut off by flooding in 2022, and this has never happened before. The plan states Yamba experiences four peak seasons in a year, with a potential population increase of more than 100 per cent. What if this occurred with the flood? The evacuation routes won't cope. And what if it coincided with a king tide?
It also states Yamba in a flood would be cut off for two to three days and is large enough that it has sufficient accommodation, medical services and food for this period. In the 2022 flooding, Yamba was isolated for seven days: two days by stormwater and five days by river flooding. Coles ran out of food and closed. Residents were not able to see a doctor for about seven weeks. Doctors are not taking new patients. Yamba does not have sufficient accommodation off the flood plain. Flooded residents evacuated to neighbours' and friends' homes. Toilets wouldn't flush and power was cut. Not all streets are included in the plan and there is no mention of what streets were closed. Residents are discovering they are unable to obtain home insurance or the price of insurance has become prohibitive.
Continuing to fill the flood plain and increasing the population in Yamba will increase the burden on SES volunteers in flood events. Yamba CAN commends the SES for the work they do. At the recent Yamba CAN flood awareness and resilience meeting attended by over 250 residents, SES workers offered to attend a further meeting to collect data and information from Yamba residents about the 2022 flood events.
Another example of a development application is Parkside—136 dwellings, manufactured housing estate, 2,600 truck and dog movements. The development was provided to the Northern Regional Planning Panel in 2022 just after the floods and was deferred twice. The first time an evacuation plan was requested, as the site is in a floodplain area and would become isolated from escape routes and it floods adjacent properties and safe evacuation could not be guaranteed. The second—it was an independent peer review of the evacuation plan provided. The third time it was approved. Three members on the panel virtually dismissed the peer review, which stated the evacuation "is divergent from State guidance and practice" and "Based on these findings, the current proposal is unsatisfactory from a flooding and emergency management perspective."
There are a lot of concerns about this development which is now occurring, filling the flood plain. Overlooking the peer review is one. National Parks weren't even contacted by council, when the stormwater is going to be funnelled into the nature reserve. There is no consideration of stormwater flash flooding without warning, and there are a lot more other concerns. What is suggested—considerations, reforms in the planning process, an immediate moratorium on developments on flood plains. The State Disaster Mitigation Plan 2024-2026 hastened the provision of local disaster adaption plans. There is a document that has just come out recently, Climate Valuation, which talks about the majority of homes that are highly vulnerable to becoming uninsurable due to climate-exacerbated riverine flooding—uninsurable homes.
We really should need a review of the Sydney and regional planning panels' operational procedures, ensuring all DAs comply with council's LEP. Concern is that council and the developers currently use the same outsource companies to research, assess and formulate documents in relation to development applications, flood modelling and evacuation plans. Council needs to ensure accurate modelling and mapping to include stormwater flooding. Councils also need to have better community consultation and engagement, as it is inadequate, and council should be required to advertise development applications and approved developments in the local papers.
The CHAIR: Ms Tyas Tunggal, did you want to—
HELEN TYAS TUNGGAL: Yes, now I'll have my turn. Thank you for the opportunity and, after more than two decades of questioning council's decisions, being here today feels like a positive step towards seeking sustainable solutions to what is an extraordinarily unsustainable situation evolving in Yamba. With more than 10 million tonnes of fill being dumped onto the Yamba flood plain for medium- and high-density housing development, the question being asked by an exponential number of Yamba residents and visitors when they see what is happening is "How has this been allowed to happen?" A factual historical response is that council's planning processes over the last two decades have resulted in more questions than answers, and the outcomes are visually shocking.
Throughout the planning process there has been a lack of overarching scrutiny by any authority; advantage taken of technicalities and loopholes in the State planning system and regulations; failure to implement what should be council's endorsed preventative strategies in the LEP, the DCP and the FRMP—the floodplain risk management plan; realistic assumptions and crucial information missing from the flood modelling; the ignoring of long-time and new residents' lived flooding experiences over decades; and the ongoing destruction of up to seven endangered ecological communities identified by a comprehensive government report. Community group Valley Watch has been working hard to delve into the magical workings of local government planning over the last three decades and has produced for educational purposes a summary of this in the PowerPoint presentation, "A brief history of community concerns around floodplain development in West Yamba".
My presentation focuses on West Yamba, but we could also be looking at Park Avenue, Orion Drive or what is the Yamba Quays estate, which is a total other can of worms on a zombie DA. It started in 1995 with the Maclean council commencing planning for development of West Yamba. Then, in 2005, a slim majority of councillors on the newly amalgamated Clarence Valley Council overturned years of planning and voted to increase the density of the proposed development, raising the target population ceiling to 13,000 from the 11,000 set in 2001. You may recognise some of the faces in that council: past and present MPs in this Government. That's just an aside.
In 2006 the New South Wales Department of Planning and the Department of Natural Resources undertook an assessment of the conservation values of the vegetation at West Yamba in the context of the proposed zone amendments for the LEP. The assessment found overall conservation values to be high, containing or in close proximity to seven endangered ecological communities and vegetation communities of high conservation value and planning concern, including coastal saltmarsh, freshwater wetlands on coastal plains, and five different forest types. The assessment found that development proposals would be highly detrimental to the conservation values of a number of endangered ecological communities, would remove the largest remaining near-coastal remnant of this forest type, would likely result in severe and irreversible detrimental effects on flora and fauna, and would negatively impact on the function of the only vegetated corridor linking conservation areas to the north and south of Yamba.
A comparative aerial analysis between 2000 and 2005 showed clearing and poisoning of vegetation. Unlawful clearing—and it's in this report—uncovered an Aboriginal midden archeologically reviewed to be a burial site. CVC director of environment and planning, Rob Donges, told the media that action was being considered. Nothing happened; no action was taken. In fact, the largest landowners in West Yamba, the Birrigan Gargle LALC, were totally left out of the whole rezoning process over 10 years. I know this as a fact, as I was closely involved with them at the time.
There was hope in 2006 when the new, compulsory State government LEP included legislation designed to avoid unnecessary environmental impacts on flood-prone and riparian land. This included development of flood-prone land—compulsory, if it applies; acid sulphate soils—compulsory, if it applies; excavation and filling of land—compulsory; heritage conservation—compulsory; and water bodies on riparian land—compulsory. But our council staff said that, technically, the draft West Yamba LEP, as an amendment to the Maclean LEP 2001, is not required to comply. What does that tell us?
In 2007 Valley Watch and others formally objected to the endorsement of the draft LEP for West Yamba, detailing concerns with the site being well known as a flood storage area, climate change predictions and cumulative negative effects on the residents and environment. Local knowledge vehemently disagreed with council's mapping of natural flow lines and floodways as no studies were undertaken. In 2007 The Sydney Morning Herald did this article, "Coming to this swamp: suburbia". It states:
… 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 then mayor said:
"It may be that people who are flood-proof at the moment will be put at risk …
"A great deal has happened since the council [first] decided to increase [the area's] yield. From the middle of last year a great awareness of climate change issues [has surfaced]. It is a whole different ball game."
This is 15 years ago, again pushing these loopholes, pushing things that haven't been completed. The article continues:
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."
Of most concern to the community has been the lack of implementation of the current Yamba Floodplain Risk Management Plan and study that were unanimously endorsed by council 15 years ago at their 24 February 2009 meeting. The WYURA DCP states:
Extent of any development potential is to be consistent with a final Floodplain Risk Management Plan.
When asked why isn't the Yamba FPRMP being implemented, for years the senior council staff—the last three years, at least—have insisted this study has been superseded by the 2013 Grafton and Lower Clarence flood model et cetera, and so these queries in relation to this study are no longer relevant. But Yamba is not in the Grafton FPRMP, so now it has been confirmed that the Yamba FPRMP is the current legal FPRMP. Had it been implemented as intended, we could have largely prevented the huge problem currently occurring in Yamba. It recommends, prior to the proposed west Yamba rezoning and development:
A practical method of evacuation approved by the SES during the planning process needs to be in place prior to development consent
…
Filling for building pads within existing zoned areas is permitted … as long as it does not affect local drainage. Filling on a larger scale should only be permitted following a rigorous hydraulic and environment assessment. Council should maintain a database of filling to monitor its cumulative effects.
The proposed master plan to be developed before subdivision must also address water-related issues. None of these things happened, and the study also warned:
• Any further development will exacerbate the flood hazard,
• The proposal is not compatible with two background reports.
I'll leave out the next few things that were happening, but the lack of a master plan—2½ thousand signatures were collected calling for a moratorium on development until it did that. Yamba Valley Watch had to take the council to the NSW Civil and Administrative Tribunal because they wouldn't release the floor-level studies that were collected in 2014. They only gave it to the Insurance Council and to the consultant. There's one thing here that I really think shows it in a nutshell, if you could just give people that. This is the Clarence catchment. It has 55 sub-catchments, and there's so much concern that the current flood model is lacking accuracy. It doesn't include stormwater run-off. It doesn't include flash flooding or wave motion, all of which are not included in there. There are some modelling assumptions supposedly compatible with current guidelines and accepted best practices that don't make any reasonable sense. You can see where Yamba is here and it actually says:
Tributaries of the lower Clarence River are only represented in the model in so far as allowing backwater from the Clarence River to extend into the tributary catchments.
All of these significant catchments around here in the lower river—the Esk River, the Clarence coastal, the Broadwater, Sportsmans Creek, Swan Creek, Coldstream Creek, Shark Creek and Lake Wooloweyah catchments—eight of the 55 sub-catchments assume that there isn't going to be any water coming out of them and that the flooding from the Clarence River-Boorimbah is going to go back up those catchments.
In conclusion, the community has been asking the same questions for 15 years to no avail—it's on the back page—about the fill, about the stormwater, about liability, about the master plan. At last week's NRPP assessment meeting, a Yamba resident, whose home now floods during rain since the fill started coming into West Yamba a few years ago, asked, "When my home becomes uninsurable and then uninhabitable, who is responsible? Who is liable?" The NRPP Chair's response was, "We can't answer that question." The planning rules must change now and there needs to be an immediate moratorium on floodplain development until things are properly sorted out with embedded physical climate restarter in all decisions. Thank you.
The CHAIR: Thank you very much. We'll have some questions and we also have some Committee members who are participating by Webex today, so they may have some questions for you, too. I also put on the record now that we have had the benefit of travelling around with members of the community, and some Committee members did have the great benefit of witnessing these sites physically. Thank you for bringing us along and showing us some of those sites. Also, I would put out there that I also attended the Northern Regional Planning Panel in relation to the 284 lots of development that are being considered at the moment.
I think that it is fair to say that you've painted a very clear, detailed picture of a planning system that really just has not properly worked. Even looking at its own structures and systems, whether you agreed with them or not, I think that there is a clear picture that there's just been a failing from one document to the next, from one study to the next and then the absence, if the ultimate objective is to achieve good, sound planning outcomes that don't put people in harm's way. What is your view? And I asked other witnesses this. You've painted the picture of what has happened to get us where we have got to there, but what would you say, as a local community, how is it—I know that's a big question, but even just some inputs into how the planning system has responded the way it has, and driven development to this point where people are asking those sorts of questions that they're asking at the assessment meetings?
HELEN TYAS TUNGGAL: I'd just like to say something that I ran out of time for. Some months ago, one of the councillors put up a notice of motion to seek support from the State Government to back the land that wasn't developed there and that he had good legal advice. Apparently the council got similar legal advice. The motion was defeated and replaced with something so airy-fairy I can't even think of it. That seemed like a really hopeful situation at the time where it wasn't to the detriment of the developments that were already in place, but it was going to prevent what we were destined for in the future under the present planning regime. That was very unfortunate because legally it seems that that is a possibility, and the council is not liable. I can't understand why our council did not pursue that option, especially when they got their own legal advice confirming that.
LYNNE CAIRNS: Can I just say, too, about what Helen was saying, that the legal advice that council actually got was stronger than what the councillor himself had got, so why did that go ahead, or not happen, I should say? The back-zoning did not happen. But also, what the people of the town—the Yamba CAN and Valley Watch—what we're feeling is that it's got to stop now. There needs to be a moratorium, stopping development on the flood plain. In Yamba—and I know that other areas have got similar problems—people are so fearful. They are so stressed. I talk with the locals a lot. Every time we get a heavy downpour of rain, the ones who were flooded and had sewage through their homes are anxious that they cannot insure their properties now or it's too prohibitive. So it has to stop, it really does.
The CHAIR: You've identified there that council is, perhaps, feeling some hesitancy or looking at State government leadership. Is it a matter of absence of leadership? On the papers that you present and on the materials, it does seem quite clear that we have headed in a particular direction. Some developers' consultant reports seem to suggest, "It's all okay; we're satisfying the requirements." But then the community, the evidence from the ground and the experience that people have lived through doesn't seem to play out.
LYNNE CAIRNS: The council's LEP has been contravened for years. There is a section that talks about when you have rainfall on a property it is not to be disperse onto any other properties. That has been contravened for years. Unfortunately, we seem to have this environment now, or this mentality, that it is them, council staff, versus the ratepayers. This is why we've been asking and asking why wasn't there any post-flood data collected.
And there wasn't. This is why the SES has now taken up the ball and said to us, "If you hold another meeting—Madam Chair, you would [sic] there at the Yamba Get Ready – Flood Awareness and Resilience meeting. SES weremthere asking us to have another meeting so that they can collect the data—what is there—but it is over two years on. A lot of this data is probably gone. People have moved on and sold up. They haven't got their photos and can't remember where the flood height was on their properties or how long it stayed there. That is what is appalling. It really should have been done.
HELEN TYAS TUNGGAL: Regarding the DA under consideration—this came from last week—the best assurance that the CVC staff have, regarding the 22 issues of noncompliance last year, is that their belief is that, according to expert opinion provided in the reports from the developer, noncompliance issues have been addressed consistent with the controls for west Yamba, which are obviously inadequate for current needs. There is something else I would like to add that might help explain things, but I don't know whether I'm allowed to say it.
The CHAIR: You have the benefit of parliamentary privilege, but remember what we say at the outset: Whatever you say in here, you're not covered as to what happens outside.
HELEN TYAS TUNGGAL: No. It's factual—to mention the name of the planner. The Sydney Morning Herald called him the "architect" of West Yamba in 2007. He is also, in the last few years since he left council, the consultant for the developers. It's been very interesting. I don't want to cast aspersions if it's not necessary, but it does make people a little bit concerned. A lot of these things were put in place to allow this to happen decades ago. Even when we do have the LEP 5.21, it is just ignored. Expert opinions are ignored.
LYNNE CAIRNS: Sue, you heard me talking about this evacuation plan that is totally inadequate. Council's conclusion of their assessment actually says, "Following a thorough assessment of the relevant planning controls, issues raised in submissions and the key issues identified in this report, it is considered that the application can be supported."
The CHAIR: I also heard that there are a lot of older residents that are living in supported residential accommodation, and that any evacuation plan would be of military scale if a flood was worse than the 2022 flood. I heard that and found it very compelling, because all of the evacuation routes are blocked. Let's face it: The 2022 flood had characteristics that were potentially quite generous to some of our local areas—i.e., it could have been so much worse in terms of the flood heights and levels when we're looking at probable maximum flood heights.
HELEN TYAS TUNGGAL: It's interesting. The last riverine flood was not as bad for us as, say, for Lismore. It was mainly the stormwater that came for days beforehand. The fact is that data hasn't been collected and lived knowledge hasn't been sought, like Tweed council is doing to get a better picture. There's a home in Golding Street where the 1974 floodmark is 78 centimetres higher than what our current flood model is. You saw what I said about these eight lower catchments, assuming that the floods are only going to go up them and not come down them. That came out of the SES's flood evacuation dated 31 May 2024. So it's recent. That was based on a report from BMT. They're the council's consultants as well as the developer's consultants. The information was passed on by council, according to the documents, to the SES. It's just incorrect, and none of it includes stormwater.
LYNNE CAIRNS: This evacuation plan was done by BMT, and their figures—their calculations and their multiplication—are not right. It's inaccurate even in the document. It quoted 6,300 and whatever. There are 8,600 people on the flood plain that they feel will require evacuation. How can that be possible with one road in and one road out? Looking at where cars drive in West Yamba, where this 284 small lot subdivision is, there is one road in and one road out. Some of the people that you were talking about in that manufactured housing estate of over 200 require medical treatment from a nurse if they have wounds to be dressed on a daily basis, or maybe antibiotics or whatever. They were cut off as well. One particular old fellow who had a four-wheel drive actually drove through the floodwater and risked it. There were no managers on site during this event. We were cut off for seven days. He went up to the pharmacy to get medication that people were running out of. That's not good. When council is saying "no substantive risk to life", how can that be guaranteed?
The CHAIR: We really are talking about life and death.
HELEN TYAS TUNGGAL: I have one thing about BMT that has come out of a Valley Watch submission a few years ago, because we could not make head nor tail of their flood modelling and hydrology. There were so many omissions and mistakes. We got to the last page of the 164-page document, and the FIA states, "This report is prepared by BMT for the use of BMT's client. Where this report has been prepared on the basis of information supplied by the client or its employees, consultants, agents and/or advisers to BMT for that purpose, BMT has not sought to verify the completeness or accuracy of such information." It doesn't give you confidence.
LYNNE CAIRNS: How do we overcome this? Is it a conflict of interest?
The CHAIR: These are all matters that we will consider. We've run out of time. I want to say one last thing and ask for your comments very quickly. After the 2022 flood, both the Premier and the Prime Minister said there will be no more development on flood plains. What's your response to that, given we're now in 2024?
LYNNE CAIRNS: Honour your commitment. Honour your promise.
HELEN TYAS TUNGGAL: It must stop until things are sorted out. We're heading for a disaster.
LYNNE CAIRNS: Moratorium.
HELEN TYAS TUNGGAL: It's really, really scary. We keep asking the council. They talk about making decisions in good faith. The sincere belief is that they're making decisions based on accurate information. They can't deny the information that has been given to them by groups such as Yamba CAN and Valley Watch, and residents—photographs and videos. I can't see how anything can be decided in good faith when there's all this evidence that it's wrong.
LYNNE CAIRNS: Compelling evidence that it's wrong.
HELEN TYAS TUNGGAL: Compelling.
The CHAIR: Thank you both so much. The secretariat will be in contact with you if there were any matters taken on notice. Thank you for tabling the documents. Thank you for your time.
Complete transcript of 17 June 2024 hearing can be read and downloaded at:
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