Presentation to Eurobodalla Council Public Forum July 13th 2021
Thank you Madam Mayor
I intend to address 4 issues raised in the Broulee Mossy Point Community Association’s
letter sent to the General Manager on 29 June and in the related material lodged by the
Association with Council
1. Flawed consultation.
2. Why wasn’t an Asset Protection Zone required on the developer’s land?
3. Flawed Approval of an Asset Protection Zone.
4. Actions for Council.
1. Flawed consultation.
At no stage in its consultation with the Association did Council raise clearing the land
intended by the Plan of Management to be “Community Land: Natural Area: Bushland”. It was left to the Association to remind Council of the Plan of Management it had adopted.
Before the Association provided this reminder it understood Council intended that all the
land should be cleared and sold as building blocks.
Council knew before the clearing took place that the land was to be “Community Land:
Natural Bushland” and was highly valued by the community but still failed to engage in any
communication despite there being many opportunities for this.
Council also knew that the land was a Landcare project site. Indeed, it had signposted it as
such. This was approved by Council officers in 2004. No communication was attempted with Landcare.
The General Manager and senior staff have shown utter contempt for the principle of
community consultation set out in Appendix 2 to the Plan of Management, in particular:
“The principle of providing credible information in open and accountable processes” to
encourage and assist “… the effective participation of local communities in decision
making.”
Has anybody in Council bothered to read the adopted Plan of Management? It seems not.
Community relations and communication are issues for the General Manager’s annual
performance review and, by extension, Council’s senior staff. On this issue they must fail.
Why wasn’t an Asset Protection Zone required on the developer’s land and the developer
required to register it as part of the DA?
I gather from other developers that this is normal practice.
The developer has ample land on which to achieve this. This land is already cleared and the creation of an APZ on it will have minimal community or environmental consequence.
The approach recommended by the Local Government Act 1993, Standards for Asset
Protection Zones and the RFS Planning for Bushfire Protection Document is that “an APZ
should be located wholly within your [the developer’s] land”.
Flawed approval of the Asset Protection Zone
The questions lodged by the Association relate directly to this and require answering.
Council’s press release refers to the legal framework. That framework includes the Local
Government Act 1993, in particular sections 35 and 36F. Those sections require that
Community Land is to be used and managed in accordance with the Plan of Management
and that land categorized as “Natural Area: Bushland” is to be maintained in its natural state
The Plan of Management adopted by Council on 25 November 2003 requires that the land
at the corner of Broulee Road and Clarke Street be reclassified as Community Land and
remain as Natural Area: Bushland.
The Plan noted that the unformed road on this land would need to be closed for this to
happen. In the 17 years since the plan was adopted Council has made no effort to close the
road. This is an abject failure by Council. It is doubtful if this failure makes it legal to clear
the bushland to provide an Asset Protection Zone for the benefit of the adjoining private
landholder.
The NSW Government / RFS Planning for Bushfire Protection document provides that Asset
Protection Zone should be contained within the overall development site and not on
adjoining lands.
Where an Asset Protection Zone is proposed on adjoining lands a guarantee must be
provided that the land will be managed in perpetuity. To ensure this, the land should have
an easement under the Conveyancing Act 1919.
It notes that an easement should not be provided where the adjoining land is used for a
conflicting public purpose. Community bushland would be seen as a conflicting public
purpose. Has an easement been created?
For the clearing of the land to occur legally Council must have provided written
authorisation to the owner of the adjoining land with appropriate constraints. Was this
written authorization provided?
Finally
There are the actions that Council must take to be in accordance with the Local Government Act, the adopted Plan of Management, and the requirements of the RFS Asset Protection Zone standards. These include:
1. Stop or reverse the action to create an APZ on the unformed road.
2. Implement Councils 2003 decision to classify the unformed road as “Community
Land-Natural Area: Bushland”.
3. Give effect to “the principle of providing credible information in open and
accountable processes…” by providing to the Association copies of each document in
its possession, power and control relating to the Council’s:
a. Decision to approve the Asset Protection Zone; and
b. Compliance with Local Government Act, Standards for Asset Protection Zones
and the NSW/ RFS Planning for Bushfire Protection documents.
4. Provide full answers to all the questions raised in the documents lodged with Council
on the Association’s behalf.
Andrew Bain
Acting President
Broulee Mossy Point Community Association
