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/
.jpg)
