AUDIO: Deborah Stevenson presents to Eurobodalla Council meeting of March 12th 2019 recorded and republished under Fair Dealing for the purpose of news Presentation to Eurobodalla Council on QON19/003 from Anthony Mayne re: DA508/17 sub-division and new dwelling Lot 63 DP1194047 George Bass Drive, Mossy Point
My interest in this matter
I am new resident attracted to the region by the natural beauty of the Eurobodalla Shire
I have extensive experience in biodiversity assessment and management, as well as environmental planning and compliance at both State and Commonwealth levels which involved working with Councils across NSW on large development projects and planning proposals, including Biobanking and Biocertification proposals
The site (Figure 1)
Lot 15 DP1248291 (previously Lot 63 DP1194047)
heavily vegetated and bordered by the Tomaga River
1. Acid Sulphate Soils (ASS) (Figure 2)
the site is mapped as Class 2 indicating that ASS are present relatively close to the surface and may be disturbed by works at the site
2. Significant Wetlands (Figure 2)
the site directly adjoins a State Significant wetland (previously State Environmental Planning Policy 14 Wetland No. 187 now identified under the Coastal Management State Environmental Planning Policy)
3. Bushfire (Figure 3)
the site is mapped as Bushfire Prone Land of the highest category because it is fully forested.
4. Biodiversity (Figures 4, 5 and 6)
surveys in 2016 identified the following threatened species and communities on site: 3 Endangered Ecological Communities - the Bangalay Sand Forest, Swamp Sclerophyll Forest and Coastal Saltmarsh; a resident family of Yellow-bellied Glider (feeding and denning trees are present); Greater Broad-nosed Bat, Southern Myotis; and Grey-headed Flying Fox. There is potential habitat on site for at least another 13 threatened species, which would not have been picked up during the short survey period (1 day and 5 nights) or which were not targeted as part of the survey’s work.
5. Flooding and Sea Level Rise
the site is less than 10m above Sea Level at its highest point and has been mapped by Council as flood prone.
·Eurobodalla Rural LEP 1987 requires Council to take into consideration the potential impacts of climate change, including sea level rise, when considering whether to grant consent to development on land to which 7(1f) Environmental (Coastal) Protection applies. This site was initially zoned 7(1f).
6. Aboriginal heritage
the site is adjacent to a coastal estuary and extensive wetlands which would have been favoured by local Aboriginal people in the past and it is therefore likely to have important values and contain many objects of significance to Aboriginal people.
The approved development (Figure 7)
The location of the dwelling and associated infrastructure maximizes environmental impacts on the site. The Asset Protection Zone requires clearing for 32m around the dwelling and a loop road or turning circle must be provided for firefighting vehicles. The access road from Annetts Parade cuts through the forest for 720m and will need to have 3 passing bays constructed to comply with fire fighting requirements. An alternative emergency access road 120m long will also need to be provided from George Bass Drive to the dwelling. In addition, the dwelling will need to be connected to services which will require further disturbance to the endangered vegetation at the site.
The endangered vegetation on site is in excellent condition except for the development site which has had large trees removed and is regularly slashed despite it having been listed for protection under the Threatened Species Conservation Act (Figure 8).
Zoning history of the site
Past zoning (Figure 9)
the whole site was originally zoned 7(f1) Environmental Protection (Coastal Lands Protection) under the 1987 Eurobodalla Rural LEP, which seems appropriate given its constraints
in 1992, against the advice of NSW NPWS and a number of other state government agencies, the land was rezoned 1(c) Rural Small Holdings. Five years later in 1997 it became part of a proposed 81 lot subdivision to the west and east of George Bass Drive – the Estuary Estate. NSW NPWS strongly opposed the rezoning of this area to the east of George Bass Drive, which they stressed was in an extremely sensitive location adjacent to a state significant wetland and the Tomaga River. The site also supported an important remnant of natural vegetation which was not well-conserved and which provided habitat for a number of endangered fauna. The site was subsequently removed from the proposed subdivision, but was not given any form of protection.
Current zoning (Figure10)
under the Eurobodalla LEP 2012, the site was designated a Deferred Matter which meant that development continued to be guided by the 1987 Eurobodalla Rural LEP zoning i.e. Rural 1(c) and the Development Control Plan that applied to the land prior to the implementation of Eurobodalla LEP 2012.
However, in recognition of its sensitive nature and the constraints present on the site, the site was subsequently zoned E2 Environmental Conservation under the Rural Land Review Planning Proposal 2018. This was consistent with advice provided by OEH in 2016 which described it as ‘a rare coastal remnant in natural condition that lies in an extremely sensitive location’. The land was seen as unsuitable for development due to its conservation and wetland buffer values.
Questions to Council :
1. Why has Council worked so strenuously to zone this land for development given its highly constrained nature and the strong objections from NPWS/OEH, as well as other state agencies?
2. Why did Council approve development in the most sensitive part of the site, which is proposed to be zoned E2 Environmental Conservation under the RLR Planning Proposal, and not the area of land along Annetts Parade which is proposed to be zoned E4 Environmental Living under that Planning Proposal? OEH actually supported limited development in this area because it does not support endangered vegetation and is adjacent to other residential areas and associated infrastructure.
3. In determining to issue consent to this development what weight did Council give to the Eurobodalla RLR Planning Proposal which zones the site E2 Environment Protection? Section 4.15 of the Environmental Planning and Assessment Act expressly requires a consent authority, when assessing any development application, to take into consideration the provisions of any proposed planning instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority, in this case the Department of Planning.
4. Did Council require an updated Aboriginal Cultural Impact Heritage assessment for this development proposal because the last study in the area was undertaken over 20 years ago and there have been major changes to the legislation which protects Aboriginal heritage since then, as well as a greater awareness of the importance of the Tomakin area for Aboriginal people? If not, who is supposed to identify any Aboriginal relics or objects uncovered during works on the site, as advised in the Development Consent, and how will they do this?.
5. What stage is the development subject to DA no. 508/17 at (Council’s DA tracker has been off line for 4 months since December 2018)? Has a Subdivision Certificate been issued? Has the Construction Certificate been issued? Have works formally commenced? If so, where can the public view copies of:
the final Vegetation Management Plan (VMP)
the s.88B instrument which is registered on the title of the land and under which the VMP will be implemented
the Acid Sulfate Soil Assessment and Management Plan
the Construction Management Plan
the Asset Protection Zone Tree Plan
all of which are meant to be in place before any works can commence at the site.
6. What measures have been put in place to effectively control soil erosion on the site to prevent silt discharge into the Tomaga River and the adjacent wetland? Has a temporary fence/barrier been installed between the development area and the riparian reserve to prevent spillage of material onto these lands?
7. Clearing of an Endangered Ecological Community prior to August 2018 required either a valid consent under the Environmental Planning and Assessment Act or a licence under the Threatened Species Act or, if the land was zoned Rural and subject to the Native Vegetation Act, the need to protect an asset on the land such as a fence line or building. There are no assets on the development site, so what approvals did the owner/s of the site have to undertake the slashing and tree removal works in the Bangalay Sand Forest Endangered Ecological Community (see Figure 8)? Does this site have a history of illegal clearing?
This development throws into doubt the ability of Council to make sensible planning decisions in heavily constrained, highly sensitive areas. This will only become a more frequent occurrence if the Eurobodalla RLR Planning Proposal 2018 is approved as it currently stands, since there are no E3 Environmental Management zones and the protections afforded by E2 Environmental Conservation zones have been watered down. The removal of overlays from the LEP and the substantial increase in permitted uses across rural zones that accompany the Eurobodalla RLR Planning Proposal will only exacerbate this situation. Eurobodalla will go from being the Nature Coast to being just another over-developed coastal strip.
My comments on Council’s responses to QoN 19
I have provided comments (in RED) on Council’s responses to Clr Anthony Mayne’s Questions on Notice based on my professional experience and research. Please see below: The following question on notice was received from Councillor Anthony Mayne: Question A number of residents from the Broulee and Mossy Point area have raised concerns about the removal of trees on the large block of land at the corner of George Bass and Annetts Parade, Mossy Point. 1. Could Council outline the DA process in relation to the specific block in question, being DA Number 508/17 New Dwelling Lot 63 DP 1194047 George Bass Drive, Mossy Point, NSW? 2. Could Council please outline its role as it remains the consent authority and OEH as an advisory role, which appears to have been disregarded to a large extent. OEH has objected to development on the subject land in 1992, 1997 and most recently July 2016 in the Eurobodalla Rural Land Review Planning Proposal. 3. How has Council addressed these concerns through the DA process? 4. How does Council ensure that the rare coastal remnant Bangalay Sand Forest, an endangered ecological community, which provides wetland and conservation buffer values, is appropriately managed through the process? Council Response Development Application 508/17 was lodged in March 2017 seeking to build a dwelling on the subject land. The application was determined in June 2018 (prior to the Biodiveristy Conservation Act and Local Land Services Act amendments coming into force in August 2018) after an amended proposal was provided to Council. The original application was referred to the NSW Office of Environment and Heritage (OEH) as the land contains an (3) Endangered Ecological Community (EEC) (and provides known habitat for Yellow Bellied Glider and a number of other listed threatened species). The advice received is detailed in the letter attached to the Question on Notice. Following the advice received from OEH and Council’s internal assessment, a request for further information was sent to the applicant in April 2017 and an amended proposal was received in 2018. There were a number of discussions between Council and the applicant/applicant’s consultants in preparing the amended application. (This amended application does not address OEH’s concerns about the proposed development). The original and revised application were both supported by various reports, including a flora/fauna assessment undertaken in accordance with the relevant NSW Government legislation. The revised assessment addressed the concerns raised by OEH (no it didn’t) and concluded that the impacts were not significant, and therefore no grounds to refuse the Development Application (there were more than sufficient grounds on a range of issues from Threatened Species/HCV vegetation, to Aboriginal Heritage, to Bushfire Risk, to ASS, to Flooding and SL Rise, to lack of services and the proposed zoning for the site under the RSL Planning Proposal, which is E2 Environmental Conservation). It is important to note that the flora/fauna assessment was carried out by a qualified ecologist, who is an accredited assessor under the OEH’s own accreditation scheme (a threatened species assessment by a qualified ecologist - known as an Assessment of Significance - is a legislative requirement under the Threatened Species Conservation and Environmental Planning & Assessment Acts which the proponent was obliged to undertake and provide to Council for their consideration because threatened species ecological communities are known to be present on the site and will be impacted by the proposed development) The advice from OEH was not ignored (yes it was, they recommended development be restricted to the land along Annetts Parade instead, for all of the above reasons and they recommended an Aboriginal Cultural Heritage Assessment, which has not been undertaken). It is also important to note that as part of the proposal, the remainder of the land is to be conserved by a Vegetation Management Plan (VMP) (Has a final VMP been submitted, the development consent only makes reference to a draft VMP? – A subdivision certificate cannot be issued nor can works commence on the site until a final VMP is in place) that has been attached to the title of the land (presumably this is in the form of a s88B instrument under the Local Government Act which can be revoked by Council. OEH recommended more secure protection in perpetuity via a Tier 1 Agreement under the Biodiversity Conservation Act. Has a s88B instrument been entered into and registered on title? If not, then a subdivision certificate cannot be issued nor can works commence on the site). Any subsequent landowner must abide by the terms of the VMP, which included active conservation of the EEC and restoration of previously impacted areas. In regard to the previous advice from OEH objecting to the development of this land, it has been determined from an August 1997 Council report that: · The 1992 advice from National Parks and Wildlife Service was to oppose the rezoning of the land to 1(c) Rural Small Holdings. The land was subsequently rezoned to Rural Small Holdings (against NPWS advice) and this is the current zoning of the property today. (In determining to issue consent to this development what weight did Council give to the Eurobodalla RLR Planning Proposal which zones the site E2 Environment Protection? Section 4.15 of the EPA Act expressly requires a consent authority, when assessing any development application, to take into consideration the provisions of any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority, plus any DCP). · The advice in 1997 was from the National Parks and Wildlife Service (NPWS) and it related to an 81 lot subdivision (the Estuary Estate), which originally proposed the subdivision of the subject land into 16 lots. This proposal was not pursued because of concerns from NPWS about habitat loss for endangered species. The lot was created during the Estuary Estate development as a residual 13 hectare lot that may be subject to further development once the identified studies had been carried out. · The 2016 advice was from the Office of Environment and Heritage and related to the proposed zoning under the Rural Land Strategy Proposal which proposes part E2 and part E4 zones over the land. (OEH supported zoning of the site E2 which does not allow any dwellings to be constructed on the land. So how does Council justify approving a dwelling on the land in the light of OEH’s objections to the development and the proposed zoning for the site in the Eurobodalla RLS Planning Proposal, which is now with the Department of Planning and, which Andrew Constance assured the community at a recent meeting, will be signed off by the Minister for Planning after the election)? In assessing the development application, one of Council’s key goals was to provide some certainty around the conservation (development not conservation. The loss of 1Ha of EEC from a 13Ha remnant will put pressure on the remaining endangered vegetation and the threatened species who use this vegetation as habitat and inevitably lead to their degradation/loss) of the land. A dwelling has been approved on the land and there are some impacts associated with that use but this has been offset (this is not consistent with the definition of an offset which is additional to any losses see OEH’s Principles for the use of Biodiversity Offsets in NSW) by the remainder of the site being protected (not securely in the form of a covenant in perpetuity) and measures put in place to actively conserve the Endangered Ecological Community (Is there a final Vegetation Management Plan for the site and who will implement and monitor it – the landowner who has previously illegally cleared the site?).