Showing posts with label zombie DAs. Show all posts
Showing posts with label zombie DAs. Show all posts

Friday 13 September 2024

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/


Friday 6 September 2024

The battle continues to save Wallum Wetlands from further encroachment by developers

 

Clarence Property Corporation Limited - issuer of the PDS for Clarence Property Diversified Investment Trust (formerly Westlawn Property Trust) & Epig Lennox Property Trust - through its subsidiaries Clare Property Corporation Limited and Bayside Brunswick Pty Ltd continues to insist it has a right to swing its wrecking ball through what remains of natural landscapes in coastal areas of the NSW Northern Rivers region.

Currently it has eight largescale development projects in northern New South Wales listed on its website.

The Wallum development at Brunswick Heads is one of these sites and Lot 13 DP 1251383 and environs on Torakina Road, Brunswick Heads NSW, has been a bone of contention for years as the local community continues to resist this 'zombieDA'.


Wallum Land
IMAGE: Mac Maderski at savewallum.com
Vegetation mapping of Lot 13 DP 1251383 and environs


Echo, 29 August 2024:









Both opposing parties regarding the 126-housing Wallum development in Bayside, Brunswick Heads, are claiming a victory after the latest court decision, handed down on August 23 by Justice Bromwich.


In a statement, Save Wallum Inc, say the Federal Court upheld the stop-work injunction.


Spokesperson Svea Pitman said, ‘The main contest before the court at the further hearing of Save Wallum Inc’s interlocutory injunction application was the controversial construction of nine artificial frog ponds, which are proposed as part of the early development works’.


Justice Bromwich accepted that the construction of these ponds may pose a risk to the site’s Wallum sedge frog population, and has blocked any construction of the proposed ponds until a final determination of the matter.


The orders otherwise permit very limited works, including installation of bunting, regeneration of the seed bank along sandy tracks and weed maintenance – strictly without the use of weedicides’.


The trial is scheduled to begin October 14, Ms Pitman said.


Meanwhile, developer Clarence Property says it is ‘looking forward to progressing with its approved housing estate in the Byron Shire after the Federal Court injunction was amended to permit key works to continue’.


CEO Simon Kennedy repeated his comments around the ‘critical need for new housing in the shire that had been identified by Byron Shire Council’.


He said, ‘We believe the court’s ruling affirms our commitment to responsible development and environmental stewardship and we will continue to respect the legal process as we work towards the final determination of this matter in October’.


Our focus now is on ensuring safe access for our contractors and progressing with this essential project.’


Ms Pitman added, ‘This is another major win for our community and for the race to save this unique wallum ecosystem’.


High ecological value

Save Wallum advocates say they celebrated Friday’s outcome, ‘viewing it as a critical step toward protecting one of the last intact wallum heathland ecosystems in the Byron Shire’.


Ms Pitman added, ‘This is another major win for our community and for the race to save this unique wallum ecosystem’.


The high ecological value of this area is undeniable, with its floristic diversity, absence of invasive weeds, and the presence of so many threatened species’.


She continued, ‘Australia has the highest rate of mammal extinction globally, and in the Northern Rivers, we are on the frontline of the climate crisis.


It’s heartening to see the court’s decision ensuring that no destructive works can proceed at this stage.’

~~~~~~~~~~~~


Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967 interim injunction ruling can be found at:

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/967.html



Friday 12 May 2023

Is everyone with any authority still playing Pass The Parcel with the health and safety of communities on NSW coastal floodplains? Will the Northern Rivers see effective state planning legislation amendments before the next big flood? Will local governments across the region stiffen their spines & act?


The Echo, 11 May 2023:




Development site at 60 Tringa Street, Tweed Heads, on Cobaki Creek.


Both the Tweed District Residents Association (TDRA) and Kingscliff Ratepayers and Progress Association (KRPA) have recently called for a moratorium on existing legacy or zombie development approvals (DAs) on floodplains. The state government continues to say that councils have the ability to deal with these problematic DAs, but the evidence seems to say otherwise.


The failure of current legislation to stop legacy DAs is of particular concern to the TDRA which has been seeking stop work orders on the recent activity by MAAS Group Holdings at Tweed on Cobaki Creek. MAAS bought the property, with a 27-year-old legacy development approval on it, last year for $20M+ and have started clearing the sensitive site. The Tweed Council have asked MAAS to ‘cease work’, but MAAS have declined leaving both Council and locals frustrated with their inability to stop the work and have the site reassessed in relation to flood and environmental impacts of the DA.


NSW Premier


Responding to The Echo NSW Premier Chris Minns, who spoke to community representatives on the issue of legacy developments in the lead-up to the NSW election said, ‘My office will be working closely with the planning minister as the government works on new rules to stop new developments on dangerous floodplains – having been on the ground in the region over the past couple of years, I know how important it is to get this addressed.’


The Department of Planning and Environment (DPE) told The Echo that, ‘The government is committed to drafting new rules and streamlining planning processes to stop new developments on dangerous floodplains’ yet they have thrown responsibility back to councils saying they already have the legal power to look at legacy developments.


Councils already have legal power under the Environmental Planning and Assessment Act to take action against existing zombie developments, and DPE tightened planning rules in 2020 to clamp down on new ones,’ a DPE spokesperson said.


Councils also have powers to investigate and take enforcement action if they are concerned whether physical commencement has occurred, or if any part of the development does not comply with the relevant consent….


Action needed now


Peter Newton from KRPA responded to the DPE’s statement saying ‘it’s disappointing that the department has thrown this on Council’s shoulders given that it is obvious the legislation is not strong enough for Council to actually prevent legacy developments from proceeding, such as Cobaki, where the Council “cease” orders have been disregarded. The legislation is not working and needs the state government to step in and commit to reform.’


Tweed Council’s General Manager, Troy Green also highlighted the current failures in Council’s powers to take action on these types of DAs.


There has been no change in Council or state policy concerning floodplain development post the 2022 floods. The NSW State Government Flood Inquiry made various recommendations concerning floodplain development from which there have been no subsequent directions from the government,’ Mr Green told The Echo…...


Read the full article here.