Council Planner claims Broulee clearing is legal

In response to the mounting backlash over the clearing of community owned land adjacent to a major subdivision in Broulee the Eurobodalla Council has issued a media release with Council’s director of planning Lindsay Usher saying this development and the associated clearing is not new news.

Mr Usher described the adjacent subdivision saying “The area has been zoned for development for many years. It went through a significant and detailed ecological assessment as part of the biodiversity certification process. The developer has already paid approximately $700,000 of offsets, with additional payments required for further approved clearing.

Once again, in reference only to the subdivision the Planning Director said “The biodiversity certification process also included comprehensive community engagement, as have others since including a DCP and LEP amendment, where we talked in detail with the community about what was going to happen, including clearing.

“Like the DAs for other stages of the housing estate, the DA approved in February was notified, meaning letters were sent to nearby residents and feedback sought, and signage was erected on the Broulee Road frontage.” While this may have been the case for the land that was earmarked for the subdivision the comments made by the Planning Director have not satisfied the community with the reasoning behind why the land that they knew to be community, as adopted in 2003 was cleared. In May 2021 Council had told the Broulee Mossy Point Community Association that the two lots of community land and the section of Unformed Road identified for closure and classification as Community Land were all Operational and that Council intend to sell them. A corner portion of the block nearest the Broulee Road and Clarke Street intersection, around 900 square metres, is community land and Mr Usher confirmed the trees and vegetation there remain untouched. The contentious area that Mr Usher refers to as "a Council-owned road reserve of roughly 2,300 square metres between the community land and the estate" is the section of Unformed Road Reserve that Councillors gave instruction, in November 2003, to close and add to the Broulee Mossy Point Reserves register. Council staff failed to carry out this formal instruction yet knowingly, in 2004, erected two LandCare signs on the blocks and unformed road reserve to inform the community that they were Community Land.

Mr Usher said “While the road reserve was identified in 2003 to be added to the community land parcel, this did not take place and came to Council’s attention only recently. In fact Council staff were made aware on May 30th, 2021, by way of being given a copy of Council's own Plan of Management for Broulee and Mossy Point Reserves No 2003 that the Unformed Road Reserve (Block 3) was community land.

This gave them a full month to review any commitment made of the community land to the adjacent development by way of providing an asset protection zone and gave them enough time to call a halt to the clearing of the community land. But they decided to ignore the evidence and allowed the clearing to go ahead. All too late Mr Usher has said in his June 29th 2021 media release, a full week after the clearing began that “Action to turn the road reserve into community land is now underway.” Last week saw machinery moved into the Unformed Road reserve area to leave it bare earth. As if to offer some justification to the action Mr Usher offered to the community, via his media release that this section (referred to as Block 3) "had approval for some clearing under Rural Fire Service asset protection zone requirements (APZs)".

Mr Usher said of Block 3 “Around one-fifth of the road reserve remains untouched outside the Asset Protection Zone, while a further quarter of the reserve had been cleared previously because Council has water mains located there." It is unknown what might have changed in Council's communication protocols but The Beagle has been advised that when the clearing for the water mains were carried out some years ago Council were most apologetic to the local Community Association for failing to have consulted with them prior to commencement of works.

Responding to the recent anger that has resonated across the region of the failure of Council to communicate the extent of clearing witnessed in new developments Mr Usher said that the issues considered in urban land release areas and development in the shire were complex.

“We need to meet the needs for growth, managing bushfire, managing land clearing and biodiversity, and there’s a legal framework around these things. Then there’s the views of the community on all sides. It can be a difficult task for Council to manage all those expectations and get outcomes that work. Often people want to see bigger blocks and more trees but that means more land area needs to be developed. There are impacts whichever way you do it.”

The temporary fencing that was erected by the developers around the entire area of the community land at Broulee was permitted by Council while the clearing was underway. Council say they gave permission for the fencing following claims of trespass and concerns about safety. They now advise that the fencing around the community land portion will be removed once work is complete.

Above: the fenced off Community land on the corner of Broulee Road and Clarke Street. Clarity will now be sought around the statement made by Mr Usher that Council had made available Community Land to act as an Asset Protection Zone as this is contrary to the guidance of the RFS that APZs on adjoining land are not encouraged and where an APZ is proposed on adjoining land, a guarantee must be provided that the land will be managed in perpetuity. In order to achieve this, the land should have an easement under the Conveyancing Act 1919 s.88B.