Excerpt from Tweed Shire Council's 17-page submission to the NSW Parliament, Legislative Assembly Committee on Environment and Planning, Inquiry into Historical development consents in NSW , dated 16 May 2024:
"(a) The current legal framework for development consents, including the physical commencement test.
The current legal framework requires an impact assessment in accordance with the objects and requirements of the Environmental Planning and Assessment Act 1979 (the "Act") prior to granting a consent.
Consents do not expire if they are commenced and for developments approved before 15 May 2020 it is too easy to prove commencement under the Act. This allows a consent approved decades ago and therefore assessed against decades old conditions to remain valid today.
As site conditions change and scientific knowledge advances, the impact assessments for these consents fall further apart from reality. As long as consents can continue to sit on land without expiration, the Act's objects are impossible to meet.
(b) Impacts to the planning system, development industry and property ownership as a result of the uncertain status of lawfully commenced development consents.
In failing to meet the Act's objects, historical development consents fail to achieve ecological sustainable development or consider climate change. The current legal framework requires authorities to explain to the community how such developments are
legally allowed to proceed (subject to procedural requirements) even while causing environmental damage that would be highly unlikely to be approved today. The balance between protecting private interests against confidence in the public planning system
and protection of the environment falls squarely in favour of the former.
Our understanding of disaster risk has improved through experience and is now considered with each assessment. Lacking this assessment in the past, historical development consents can place people and property at risk.
The extent of historic development consents that exist is unknown. Even recent development consents may become historical development consents in the future as site conditions and scientific knowledge change.
Local councils and communities are often unaware of a historical development consent in their backyard until a developer seeks to recommence that consent. Current register searches and prescribed documents for the conveyance of land do not allow for communities to factor potential developments into their purchase. In addition, whether a consent is a danger of recommencing is often beyond the knowledge of even the local council.
Approvals-based reporting faces the same concerns. The ability to effectively landbank and delay indefinitely results in reporting mechanisms being unable to adequately predict or rely on housing and development delivery by virtue of existing approvals
(c) Any barriers to addressing historical development consents using current legal provisions, and the benefits and costs to taxpayers of taking action of historical development concerns.
The barriers to addressing historical development consents and preventing new historical development consents lie primarily with a lack of funding, a lack of legal mechanisms that exist in other jurisdictions and a lack of certainty in the effect of existing legal provisions.
The Act contains a power to revoke a development consent in return for compensation.
No funding exists for this power and having never been tested, the extent of compensation owed is uncertain. Local councils can also acquire land. A similar lack of funding applies here by way of opportunity loss.
It may be possible to challenge a consent on grounds that it was not commenced.
However, before 15 May 2020, works as minor as inserting survey pegs into the ground were sufficient to show commencement. Accordingly, it is unlikely such a challenge would be successful.
Local councils can require developers comply with existing conditions of consent.
Conditions framed to the effect of "to Council's satisfaction" may be of assistance in barring consents from proceeding. Similarly, local councils can notify relevant authorities of developments that require additional approvals subject to savings provisions.
Local councils may be able to utilise the power under the Act to impose conditions on new consents to limit the period that consent may be carried out. This power's reach has not been tested in Court and may not extend to effectively imposing a quasicompletion date for construction and subdivision consents.
The Federal Government has the ability to require an approval for developments if they would harm certain threatened species. It does so by imposing an offence for proceeding without an approval. This requires action on behalf of the Federal Government and only applies to a selection of species set out in the Environment Protection and Biodivers;ty Act 1999 (Cth) (the "EPBC Act").
Zoning of land can be reviewed to ensure land is correctly zoned for development.
Insufficient resources are available to regularly undertake such reviews with sufficient depth and frequency. ......"
[my yellow highlighting]
Tweed Shire Council's full submission can be read at:
It is noted that Clarence Valley Council did not make a submission to this parliamentary inquiry. Even though, like many other local government areas having a extensive coastline, it has also been under sustained pressure to continue an historic practice of inappropriately developing floodplain land.
ECHO, 12 September 2024:
‘The 2022 floods in South-East Queensland and NSW are the costliest natural disaster for insurance costs in Australian history. As of June 2023, the ICA (Insurance Council of Australia) estimates the February-March 2022 floods in South-East Queensland and NSW have caused $5.87 billion in insured damages,’ according to the Australian Treasury. And that doesn’t include all those who were uninsured or the $5 billion that modelling showed the 2022 floods cost the economy.
So why are we continuing to allow developers to build on floodplains using development applications (DAs) that are ten or twenty years old and we know will cause significant future costs to our communities and governments – costs that will be in the billions of dollars and that ultimately we are paying for via our taxes and rates?
This was the question under discussion in Brunswick Heads on September 5 as concerned residents and community groups, CLAI Wallum, Friends of the Koala Inc, MPs and committee members of the NSW Parliamentary Inquiry into Historical Development Consents in NSW – aka ‘zombie’ developments met.
Zombie developments
A key part of the discussion is how to deal with legacy, or ‘zombie’ developments and their future impacts on flooding, fire and the environment. These are DAs that have been approved and have sat idle for years with only minimal work done in the first five years that then allows the DA to remain active indefinitely into the future. That is, they can be activated and developed under the original DA that does not have to take into account current legislation and learning, like the heights of the 2022 floods, and in the cases of Gales Holding in Kingscliff and Iron Gates in Evans Head they can fill floodplains and build on them with no reference to the impact these developments will have on existing and future housing, businesses and infrastructure.
‘This scourge on coastal communities along the entire NSW coast, has been very well documented in the report “Concreting our Coast: The developer onslaught destroying our coastal villages and environment” by Greens MP Cate Faehrmann,’ Kingscliff Ratepayers and Progress Association (KRPA) explained in a submission to the inquiry.
Following the meeting KRPA President Peter Newton told The Echo that: ‘Kingscliff and other areas of the Tweed Shire remain under threat from these historic approvals on the floodplain and in ecologically sensitive areas. The association welcomed the opportunity for a full and frank dialogue on the risks we are facing and the potential for planning reforms.’
Some recommendations from those attending the roundtable included potential buybacks or land swaps for these historically-approved DAs.
‘The financial cost of recovery to communities and governments is eye-watering,’ said KRPA in their submission.
‘We need to shift the emphasis from spending on flood recovery to spending on flood prevention and mitigation. This may require billions in, for example, compensation/land swaps to acquire such historically approved land from developers, but we need to start somewhere. Governments are spending billions on each flood event – this at least would be a one-off cost. This cost cannot be met by councils (and therefore ratepayers) and needs to be addressed at the state and federal government levels.’
Don’t use it, lose it
Stricter regulations around how long a DA can remain active were also put forward with president of the Evans Head Residents for Sustainable Development Incorporated (EHRSDI), Richard Gates, saying that ‘fixed use-by dates for commencement and completion of DAs’ need to be implemented....
Read the full article at:
https://www.echo.net.au/2024/09/what-can-be-done-about-dangerous-zombie-das/
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