Talking 'zombie developments' with the NSW Government & Parliament in 2024

 

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:

https://www.parliament.nsw.gov.au/ladocs/submissions/86141/Submission%2032%20-%20Tweed%20Shire%20Council.pdf

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/

The cost of living in New South Wales may have risen but so has the cost of dying thanks to Minns Government cost shifting

In June 2024 Local Government NSW issued the following media release:

Another ‘nail in the coffin’ for family budgets as cemetery tax confirmed

Local Government NSW has criticised the State Government for pushing ahead with its controversial “cemeteries tax” as families across the state struggle with the cost of living crisis.

Cemeteries and Crematoria NSW (CCNSW) has confirmed that the new tax of $156 per burial, $63 per ash interment and $41 per cremation will be levied on large operators from 1 July 2024, just under a month away. Large operators are those who carry out more than 50 interments per year. For smaller operators the levy will commence from 1 July 2025.

LGNSW President Cr Darriea Turley AM said the levy was just the latest example of cost-shifting onto local government.

“Across NSW, council cemeteries undertake more than 40 percent of all burials. This rises to more than 80 percent of all burials in rural and regional NSW, so this unnecessary new tax will hit our rural and regional communities the hardest.

“The announcement of this new impost on councils and communities also makes a mockery of the NSW Government’s commitment to seriously consider the impacts of cost shifting, and comes at the same time the NSW parliament is undertaking hearings for its review of local government financial sustainability.”

The State Government announced the levy just before Easter this year, advising that the costs were to fund the increased regulation of the interment industry. At the time, LGNSW called on the Government to fund the regulation from its core budget rather than seek to recoup cost from operators, including local councils. Now, with the imminent implementation of the tax confirmed, the local government sector says the timelines are simply unworkable.

“Our councils will not have time to properly exhibit and approve any fee increase to cover this, as required under the Local Government Act,” Cr Turley said.

“At the same time, we simply cannot absorb this levy into current operational budgets. Whether this year or next, councils will therefore have to pass on the levy to their residents and community members, making interment services more expensive for grieving individuals and families who are going through one of the most challenging circumstances of their lives.

“Quite frankly, the announcement of this levy is premature and ill-considered, with key design and implementation features remaining unresolved.

"Chief among those concerns is that CCNSW still has not provided any information to address the GST treatment queries that councils have raised. Also, there is a significant concern that for pre-need purchased interments already sold by councils, CCNSW advice confirms that the cemetery operator – including councils – is now liable for paying the levy.

"Respectful and affordable interment services are a critical public service provided by local government cemetery operators. LGNSW calls on the Premier to step in and reverse this Government decision to impose a burial and cremation tax on the community, particularly during a cost of living crisis."   [my yellow highlighting]

According to Cemeteries & Crematoria NSW the purpose of the Internment Services Levy is as follows:

Funds raised through the levy are used to improve protections for customers, maintain fair and consistent standards for the sector, monitor and enforce compliance, and deliver continuing education for operators and their staff to help them meet the new standards.

The levy was to have applied in the Clarence Valley Local Government Area since 1 July 2024, because Clarence Valley Council is considered under this new cost shifting measure by the Minn Labor Government to be a "large operator" as it has 13 cemeteries available to the Clarence Valley community at:

• Clarence Lawn

• Copmanhurst

• Coutts Crossing

• Eatonsville/Mylneford

• Glenreagh

• Grafton

• Iluka

• Lawrence

• Maclean Lawn

• Nymboida

• Maclean

• South Grafton

• Ulmarra

The levy will commence for local governments which are considered "small operators" around 1 July 2025.

However, there has been enough push back by cemetery & crematoria operators for Cemeteries and Crematoria NSW to have announced:

Delayed commencement of 3 licence conditions to 1 October 2024

The start date for the consumer contract, pricing transparency and maintenance licence conditions will be amended from 1 July 2024 to 1 October 2024 to allow more time for industry adjustment. We encourage operators who are ready to implement these conditions now to maintain their positive momentum and begin complying from 1 July. For those operators who are not yet ready this extension allows additional time to prepare.

Operators who hold a licence will receive notification of their amended conditions prior to 1 July. The Interment Industry Scheme page will be updated to reflect this change.

It is uncertain if Clarence Valley Council will avail itself of this minor 'concession'.

However, at its last Ordinary Monthly Meeting on Tuesday, 24 July 2024 Clarence Valley Council unanimously resolved to:

1. note that the NSW Government has announced a new cost shift onto Council and our community, by imposing a new tax on burials, cremations and ash interments.

2. write to the NSW Premier and Minister for Lands and Property asking that they urgently reverse their decision to impose a new tax on all burials and cremations.

It would appear that, unless the Minns Government relents, valley residents and ratepayers will be forced to pay the bill for a chronic shortage of metropolitan burial plots.

The former Berejiklian Coalition Government and subsequent Perrottet Coalition Government never gave a thought as to how metropolitan cemeteries in particular would cope with the growing numbers of deaths occurring on their watch or, if either premier did they expected to pass the problem — of an ageing population combined with ongoing SARS-CoV-2 related excess deaths — on to those state governments following them, which in the first instance is the Minns Labor Government.

The Minns Government then decided that regional areas such as the Clarence Valley would be among the first to subsidise its band-aid solution, with all 96 regional councils operating cemeteries/crematoria having the levy imposed by mid-2025.

Only two of the seven local government councils in the NSW Northern Rivers regions have made a genuine effort to divest themselves of fossil fuel industry investments

 

ECHO, 28 February 2024:

Byron Shire Council investments in fossil fuel projects as of Jan 2024 PIC Byron Shire Council

Byron Shire Council investments in projects linked to fossil fuel production decreased significantly after the NSW Treasury Corporation (TCorp) relaxed rules last year.

Investment reports included in last week’s agenda for the council’s ordinary monthly meeting showed the council had 56% of its investment funds lodged with fossil fuel aligned projects by the end of January 2024.

The figure was a decrease compared to 71% at the end of December 2023 and 85% at the end of the 2022-2023 financial year.

Staff credited the removal of a state covenant requiring local governments to invest TCorp loans mostly in institutions with A+ credit ratings or stronger.

Institutions offering investments in the ‘ethical’ area still mainly had lower credit ratings of BBB, or weren’t rated at all, staff said, citing credit unions as an example.

Staff noted the council’s diversified approach to investment was aimed at achieving short, medium, and long-term results.

Investment was regulated by TCorp, which until late last year effectively forced NSW local governments to bank at least a quarter of their low interest TCorp loans in A rated institutions or higher.

The council wasn’t allowed at the time to invest any more than 40% of the loans in A- rated institutions, 30% in BBB+ rated institutions and 5% in institutions rated BBB- and below.

Credit ratings allowed ranged from BBB- and below, or not rated, to AAA, with councils also encouraged to invest in TCorp itself.

End of financial year 2022-2023 figures from the council showed of nearly $65 million invested at the time, 85% was helping support fossil fuel aligned projects via various bonds, term deposits and other accounts..... [my yellow highlighting]

Read the full article here.

At the end of the 2022-23 financial year Richmond Valley Council had a cash held in banks & investment portfolio of $90.668 million. Of which $48.087 million or 53 per cent of the total was invested with financial institutions which do not invest in or finance the fossil fuel industry.

As of 30 June 2023 Clarence Valley Council investment portfolio stood at $156.357 million. 

Of which only $12 million is invested with financial institutions which do not invest in or finance the fossil fuel industry. Representing a paltry 7.67 per cent of council's investments. 

At the ordinary monthly meeting of 25 July 2023 all nine councillors voted to simply note Clarence Valley Council's investment position. Which appears to indicate that this local government is not overly interested in living up to rhetoric expressed in the past.

On 30 June 2023 Ballina Shire Council's investment portfolio stood at $104.300 million, of which only $8 million or 7.67 per cent was invested with financial institutions which do not invest in or finance the fossil fuel industry. As councillors there also voted to note the report without comment, there is no indication that council will be increasing its green investments anytime soon.

Tweed Shire Council valued its investment portfolio at $431.958 as at 30 June 2023. None of the investments listed were identified as being invested with financial institutions which do not invest in or finance the fossil fuel industry.

Lismore City Council listed the face value of its investment portfolio as $133.719 million. Council also had approximately $1.9 million held in various bank accounts which were deemed as transactional accounts and are not included in the investment portfolio. Council takes care to note that it holds no funds in fossil free investments or 0 per cent.

Finally, Kyogle Council published its 2022-23 financial statement in December 2023 and did not identify investments as a single line item, so nothing was to be gleaned as to what if any money it had invested with financial institutions which do not invest in or finance the fossil fuel industry.

The people of the Northern Rivers, wider New South Wales and the rest of Australia have been warned that the hands of the climate crisis clock are at 30 seconds to midnight, but it's business as usual

 

Australian climate scientist Dr. Joëlle Gergis, ANU Fenner School of Environment and Society and a lead author on the Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment Report, has recently written: 

“The climate disasters unfolding in the northern hemisphere are a sign of what’s in store here, as governments fail to act on the unfolding emergency…..

...the possibility that the Earth might have already breached some kind of global “tipping point”. The term refers to what happens when a system crosses into a different state and stays there for a very long time, sometimes even permanently. We know that once critical thresholds in the Earth system are passed, even small changes can lead to a cascade of significantly larger transformations in other major components of the system. Key indicators of regional tipping points include dieback of major ecological communities….” [my yellow highlighting]

Such observations give pause for thought.

However, the elected Mayor of the third tier governing body for the Clarence Valley Local Government Area (LGA), Cr. Ian Tiley, is apparently comfortable with the idea of personally failing to act when it comes to any proposed phasing out of logging native forests in public hands within this LGA.

At least that is the impression he gives during a photo opportunity with representatives of the state government-dominated NSW logging industry.

Presumably Mayor Tiley is willing to ignore the fact that in 2021 & again in 2022 Australian university researchers warned that logging is not just increasing the risk of severe fires, but also the risk to human lives and safety.

Logging increases the probability of canopy damage by five to 20 per cent and leads to long-term elevated risk of higher severity fires, including canopy fires. Canopy fires are considered the most extreme form of fire behaviour and can be virtually impossible to control. 

It has also been known for the last two decades that intact tree canopies can buffer against rising and increasingly record air/land temperatures due to the thermal insulation of forest canopies which protects biodiversity, allowing native flora and fauna to survive climate change-induced heat extremes better than those living on open land.

Even the NSW Dept. of Infrastructure, Planning and Natural Resources in Land Condition in the Clarence River Catchment: Report 1 - when addressing forestry as a land use - admitted back in 2014 that:

Management of forested areas for bushfire control purposes can threaten adjacent areas, cause habitat loss and encourage erosion. Public debate on this issue has been centred around the in-situ environmental impacts of the process but smoke drift over nearby population centres and the post burning effects on water quality after erosion events also impacts water supply for urban and industrial purposes. [my yellow highlighting]

Commercial logging activity occurs within the Clarence River catchment area and logged state forests do catch fire - as evidenced by Ellis State Forest near Dundurrabin south of Grafton during the 2019-20 bushfire season.

Like many other communities in the Northern Rivers region during the 2019-20 bushfire season, communities in the Clarence Valley can attest to the physical difficulties of living for days and sometimes weeks under smoke palls loaded with gases and particulate matter (including PM2.5) with a potential to affect the health.

According to the Dept. of Health's Bushfire smoke and health: Summary of the current evidence, 6 August 2020:

The Global Burden of Disease Study has shown that outdoor PM2.5 is the most important environmental risk factor in Australia, responsible for 1.6 percent of the total burden of disease in 2017. 

Evidence shows that the likelihood of an individual experiencing health effects as a result of exposure to PM2.5 depends on a number of factors. These include: the concentration of PM2.5 in air, the duration of exposure; the person’s age and whether a person has existing medical conditions (particularly cardiorespiratory disease or asthma).

It is also acknowledged that while this document focusses on the evidence relating to the physical effects that may occur as a result of bushfires smoke, bushfires have much broader mental health and societal impacts.

Clarence Valley Independent, 30 August 2023:

*click on image to enlarge*

“The Mayor also expressed his personal view, describing the timber industry as vital to the Clarence Valley.” 

I wonder if  Mr. Tiley will still be of that opinion over the next high-risk seven to seventeen years......

Doesn't matter which major party forms government in New South Wales, they all have cost-shifting onto local government down to a fine art

 

There are 128 local councils in New South Wales and this month the new Minns Labor Government decided to demonstrate that it too knows how to cost shift onto the third tier of government just like the preceding Baird-Berejiklian-Perrottet coalition state government.

Minns and Cabinet decided to test the waters with the Emergency Services Levy on 28 April 2023.

From local councils, Revenue NSW collects payments that account for 11.7% of the costs of fire and emergency services in NSW. From insurers of property in the state it collects the remainder of the levy which is paid as part of insurance premiums. Payment is in four instalments over the relevant financial year.

In 2022-23 the Revenue NSW collection target for the Emergency Services Levy was $1.17 billion, with local councils paying est. $143 million of that total. It would appear that the 2023-24 target is significantly higher, with the total annual local government contribution expected to rise to est. $219 million - a 53.1% increase.

According to Clarence Valley Council's financial statements: in the 2019 financial year the Emergency Services Levy cost to council was $952,000; in 2020 it rose to $995,000; in 2021 it rose again to $1,131,000; and in 2022 this cost fell to $752,000.

As late as September 2022 IPART had been telling local government that: The NSW Government has undertaken to fully fund the increase in councils’ 2023-24 emergency services levy (ESL) contributions, so the rate peg does not include increases in the cost of the ESL.

Local Government NSW, News,1 May 2023:

Emergency Service Levy increase will be catastrophic for councils

The newly elected NSW Government has kicked off its first term in the worst possible way by sending NSW council budgets into meltdown, forcing them to shed jobs, close services and scrap infrastructure plans.

Councils’ peak body, Local Government NSW (LGNSW), said the decision to apply sky-high increases in the Emergency Services Levy (ESL) would be catastrophic for many councils, and could see some become insolvent.

LGNSW said that for some councils the unexpected cost hit would all but wipe out any IPART-approved rate rise, shredding budgets already under massive pressure from the combined impact of the pandemic, extreme weather events, high inflation and wage increases.

The ESL is a cost imposed on councils and the insurance industry to fund the emergency services budget in NSW. The majority is paid as part of insurance premiums, with a further 11.7 per cent picked up by councils and 14.6% by the State Government itself.

“The ESL is an absolutely blatant cost shift by the State Government,” LGNSW President Cr Darriea Turley AM said.

“To make things worse, the ESL has seen stratospheric increases year-on-year to make up for the Government’s unfunded workers' compensation liability for emergency services workers struck down by a range of cancers.

“Now it appears councils are being asked to fund massive rises in emergency services budgets, including a 73% increase in the budget allocation to the State Emergency Services (SES).

“The levy increase for the State’s 128 councils in 2023/24 alone sits just under $77 million.

“To put that in perspective, Hay Shire Council will immediately lose 88.6 per cent of its approved rate rise to the ESL, while Bourke Shire Council will lose 94%, Yass Valley Council will lose 96%, and Tenterfield will lose 119%.

“Hornsby council will lose about 75% of its approved rate rise.

“This is an alarming development coming late in the council budgeting cycle and well after the IPART’s rates determination for 2023-24.

“The effect will leave some councils with insufficient funds to cover cost increases in other areas. These costs will need to be met by cuts to staff and services.”

Cr Turley said the local government sector’s fight was not with emergency services workers, but with a duplicitous and financially unsustainable funding system.

“I’m seeking urgent talks with Treasurer Daniel Mookhey where I will ask him to work with councils to develop a fairer funding system,” she said.

“This shock increase comes at a time when council budgets are still struggling with flood and bushfire disaster recovery.

“When you factor in the inflation and soaring costs we are all facing across the full gamut of our operations, the immediate future looks particularly bleak.

“We are urgently calling on the Government to:

• restore the subsidy for 2023

• unshackle this payment from council rates

• develop a fairer, more transparent and financially sustainable method of funding the critically important emergency services that benefit us all.”

Clarence Valley Council, Our Performance, 2023/2024 Operational Plan, excerpt, May 2023:

The Draft Budget does include a 5.4 per cent rate peg which assist to cover cost escalations beyond Council's control such as costs related to materials and constructions, which are up 37 per cent, fuel and utilities, and the Local Government State Award salary and wage negotiations. The recent NSW Government decision to not subsidise the increase in the Emergency Services Levy adds a further strain on Council's resources.

The Echo, article excerpt, 5 May 2023:

At yesterday’s Tweed Shire Council (TSC) meeting it was revealed that the TSC had received the equivalent of a $540,000 levy, a significant increase on what was expected, drawing a quick response from councillors at the ‘bizarre’ and ‘unbelievable’ levy that is putting council in an ‘untenable position’ according to Tweed Mayor Chris Cherry.

The Emergency Services Levy is a contribution paid by all councils that funds all the emergency services across that shire. The issue is that the state government has not only significantly increased the levy, they have removed the subsidy that councils were previously receiving.

‘The $540,000 represents the equivalent of a 0.85 per cent rate increase,’ explained Tweed Council’s general manager, Troy Green.

‘That represents one-third of the special rate variation (SRV) that we’ve asked for.’

The Council can not use the SRV to pay for the levy as, if approved, it would have to be spent on the areas identified in the request for the SRV.

‘Council unfortunately has received this notification outside our rating cycle. So we have not been able to factor this in,’ said Cr Cherry.

The Council had budgeted for a four per cent increase in the emergency services levy, however, the increase by the state government for the next financial year is 24.28 per cent.

Tweed Shire Council and Pottsville residents have managed to keep more residential housing and/or a seniors living estate off local flood prone land

In the first half of 2019 during the last days of Northern Rivers innocence or ignorance of what large scale climate change impacts meant, local governments wrote paragraphs like this in their planning documents based on flood data in some cases already ten years out of date.

‘“low island” means an area that is above the FPL and surrounded on its entire perimeter during and 100 year ARI event, but is inundated by the PMF. When flood levels exceed the FPL, in events up to the PMF, low islands become totally inundated, posing significant risk to isolated residents without flood free access to high land or shelter. Local examples include filled residential estates in Banora Point, West Kingscliff, and Pottsville, and raised dwellings in Chinderah, South Murwillumbah and Rural Villages.…..

A3.2.3 Urban Areas

Levees at Murwillumbah and Tweed Heads South provide structural protection against flood inundation to varying degrees. In other areas, planning controls are used to contain future flood damage. In 2009, a levee was retrofitted along Cudgera Creek to protect the Seabreeze Estate at Pottsville. In the event of a flood exceeding the levee height, the protected areas will flood quickly with little warning time and very rapid rises in water levels.

Council's design flood is based on the 100 year ARI event; that is a flood with a 1 in 100 (or 1%) chance of occurring in any one year.’  [Tweed Development Control Plan SECTION A3 - Development of Flood Liable Land VERSION 1.5 (DRAFT)]

Behind mentions of levee banks and need for early evacuation in flood prone areas in such documents, found in the planning files across seven regional local governments, there still lurked the thought that new housing estates and residential complexes could go ahead because floods could simply be managed by levees, land fill and residential floor heights.

Although at state level there remains environment & planning legislation which hasn’t caught up with life as it is experienced in a changing climate, there are signs that at local government level the new realities associated with the many river systems and coastal floodplains in north east NSW are slowly beginning to sink in.

Even if it apparently hasn't even begun to sink in with Newland Developers and Altitude Lifestyle, given plans for Lot 1747, DP 1215252 Seabreeze Boulevard Pottsville anticipated 6.3 ha of landfill to a height of 3.1m AHD. 

A large-scale landfill height within a range Yamba residents living approx. 155km to the south of Pottsville can attest is very likely to cause flood and storm waters to find new destructive paths though long established residential streets.

Vacant land bounded on all four sides by Seabreeze Boulevard, Tom Merchant Drive, Cudgera Creek and Sawtell Circuit, Pottsville NSW.

Echo, 13 April 2023:

The 6.3ha of vacant land at 1 Seabreeze Boulevard, Pottsville which is earmarked in the Tweed Development Control Plan 2008 (DCP 2008) as a potential school site has once again been saved from being developed as housing.

The developers Newland Developers Pty Ltd have had two previous development applications refused for DAs for residential developments at the site in 2017 and 2020. The Land and Environments Court (L&EC) once again dismissed the deemed refusal on 31 March, this time for a seniors housing development.

The developers had taken the Tweed Shire Council (TSC) to the L&EC on appeal for their proposed 93 lots for seniors housing as part of a community title subdivision making this the third time TSC had to defend the site for a future school.

Flooding a key issue

A second matter heard by the LEC, to carry out water and sewer supply works on the property, was approved by the Court, subject to certain conditions.

In its ruling on the current Concept DA, the primary finding of the L&EC was that the Concept DA failed to adequately address provisions for emergency response in situations such as flooding.

Mayor of Tweed Shire Chris Cherry said this was a good outcome for the Pottsville community who have long lobbied for a high school in the coastal village.

‘We welcome the judgement in the LEC on this issue,’ Cr Cherry said…..

‘Ensuring flood safety for our Seniors living communities is paramount and the decision found that this Concept DA did not provide the certainty needed for safe occupation of the site by our most vulnerable of residents.

‘This is the third time Council has had to go to the LEC to defend this piece of land, promised for education purposes when the Seabreeze Estate was formed in 2000. Each time Council has won these cases.

‘Council appealed to the NSW Government to rezone the land to infrastructure zoning so these repeated attempts could be avoided and the promise to the community could be honoured but the State Government did not support it.

‘With the recent change in State Government, and the promised support of a Pottsville High School by the new government, it is fantastic that this determination has come in now and kept this land available.’

Will the incoming Minns Labor Government fix the unholy mess that the outgoing Perrottet Coalition Government made of NSW planning & environmental laws in NSW?

 

The former Baird, Berejiklian and Perrottet coalition governments deliberately put a wrecking ball through NSW planning and environmental law for almost nine years.

The burning question is; 'Will the new Labor state premier, his cabinet and, specifically those he chooses as his ministers for planning and environment, walk back the legislative and regulatory power grab which leaves much of regional New South Wales vulnerable to exploitation?'

This opinion piece by Lindy Smith, President of the Tweed District Residents and Ratepayers Association (TDRRA) in the Echo, 21 March 2023, reflects similar concerns expressed by residents & ratepayers across the seven local government areas of the Northern Rivers region:

 The NSW Planning Rezoning Pathways Program was released the day before caretaker period started for the NSW government on 3 March.

This will service the agendas of developers and land bankers which is very much alive in the Tweed Shire, particularly the Cudgen Plateau, State Significant Farmlands (SSF). Under the guise of the need for housing (which we all agree is needed) there continues to be a failure to acknowledge the herd of elephants in the room – that any new house can be built and purchased for Short Term Holiday Letting (STHL) under the Governments changes to the NSW Environmental Planning & Assessment (EP&A) Act.

Does not increase housing supply

This means that there is no guaranteed actual quantitative increase in the housing supply. While the government’s focus has been driving population growth it has seriously failed in its upkeep of social and affordable housing. In fact they have been selling off such sites.

The questions that the NSW government fails to address are:

What quantity of social housing is to be part of the Program?

What is affordable housing, and where are the plans and mechanisms to provide them? How they will be protected as affordable housing into perpetuity, rather than reentering the private market after ten years?

Undermining local councils

The Planning Rezoning Pathways Program enables the overriding of much statutory investment and work that has been undertaken by local councils and communities. Many local councils and community groups have spent significant time and energy developing locally appropriate planning tools and long-term strategic planning utilising local knowledge which is key to the sustainability and liveability of their communities.

The NSW coalition government swept into power 2011 on the back of the then-controversial Part3A assessment system, promising to give planning powers back to local communities. What we have instead been dealt with is the repeated undermining of the NSW EP&A Act and the NSW state taking over so much more of local communities planning controls.

No public consultation

Further, under the former Premier and former Deputy Premier of NSW development of RegionalEconomic Development Strategies was undertaken with zero public consultation, nor any transparency. These documents only recently came to light in the public arena.

Just two days before the caretaker period the NSW Government then released its program to rezone our Crown lands for development with zero public consultation, nor any process to turn over our Crown land to development.

The mismanagement of our Crown land is well documented with the damming evidence to the Crown lands inquiry and the damming findings of the Auditor-General Report into the Sale and Lease of Crown Lands….