Risking Lives and our Future
My name is David Grice and I will address
the draft rural Development Control Plan (DCP), item PSR19/022
So here we go again, same crew, same outcome.
I need to stress from the start that the many good professional Council staff have a passion for serving the public and they fully understand they are there for the public and not for the debateable agendas of council managers. The draft DCP is so clumsy and inadequate it cannot be adopted. The DPI and OEH advice has not been included in the draft DCP. The Rural Fire Service (RFS) has not commented on the draft DCP and I assure you the RFS will not endorse it because much of their advice never made it into the draft DCP (as detailed on p10-16 of my 2 September 2019 submission). It cannot be adopted … the fire risk to the public is severe and real. If adopted you will be shown up as willing to sacrifice public safety.
It was recently suggested by Council managers, that negotiations relevant to the draft DCP have resulted in the majority of the objections from the RFS and OEH being withdrawn. (https://aboutregional.com.au/planning-department-continues-review-of-eurobodalla-rural-lands-rules/ and in ESC Agenda 13 August 2019)
This will be news to those agencies – Councillors need to just ask them.
Saying ad nauseum, they have been withdrawn, will not make it true.
Councillors could have asked the agencies questions themselves in a public forum but that motion was voted down. Instead councillors get very filtered opinions from council managers that are wheeled out without the public being given the opportunity to refute those opinions and pronouncements.
Don’t believe what you are told by managers – just ask the agencies yourself.
Let us drill down into the facts as a way of understanding the weakened fire and environmental protections in the draft DCP.
For the OEH a tiny, 4 out of 51 objections on Lots have been withdrawn. 47 original objections remain (92%) and/or, I repeat, and/or are strictly conditional on Council adhering to specific detailed planning commitments. Their advice is not included in the draft DCP. 66 Lots were never objected to in the original Planning Proposal, so they cannot be classified as being withdrawn.
Just to be clear, this shows that 66 out of 117 Lots (56%) were never objected to by OEH which is a far cry from council managers insisting OEH takes a narrow view that “there should be no impact at all” or….., if council listened to OEH advice all development would be prohibited because there may be a tree removed. Similar derogatory comments have been made about the RFS advice despite the RFS never having any objections to 19 “Areas” and no objection to specific Lots in many other “Areas”. (12 March 2019 http://webcast.esc.nsw.gov.au/archive/video19-0312.php (starting about 1:15:11 & about 1:01:50 & about 1:00:45 to 1:01:47))
This distortion exposes the extreme filter the council managers use against the OEH and RFS and helps explain the weakened fire and environmental protections in the draft DCP. Remember this is the very same “environment” that Council relies on for its new tourism strategy.
For the RFS, none of 50 original “Area”-wide objections in the Planning Proposal have been withdrawn in the draft DCP. There were never any objections for 19 “Areas” based on the Council assurance there were no additional ‘dwelling’ entitlements. Already, over 1,800 dwellings could eventually be allowed. What is ignored here is the RU land use zones potentially allows, on top of that, a vast number of ‘non-dwellings’ such as the following and much, much more: Health Services Facility; Educational Establishment; Child Care Centre; Seniors Housing; Respite Centre; Function Centre; etc., etc. Special Fire Protection Purposes facilities and the people in them have not been considered in Schedule 4 of the draft DCP. What are the consequences of all this special APZ clearing? Council response: nothing, silence.
The basis of the 50 original RFS “Area”-wide objections remain and are only moderated if and only if, I repeat, if and only if, the Council adheres to strict detailed specific planning commitments for each Lot (in many cases, almost prohibitively strict conditions) and only in terms of ‘dwellings’. Much of this advice is not included in the draft DCP. Saying the majority of objections have been withdrawn is bunkum and insulting to the professional integrity of these agencies. The Council comments insinuate that the agencies had unsubstantiated objections. The fact is Council applied their own extreme personal filters and refused to accept any of the advice and recommendations of the subject-matter experts before they forced the proposal through to the NSW Department of Planning and Environment. Council simply called it a “professional disagreement” and suggested the Council did not have the narrow focus of agencies and had to consider all aspects. However, the RFS staff are the ones that actually have to consider all aspects. The RFS are the people on the front line. These are the people that know what it takes to protect property and people. They do not advise lightly or in ignorance. OEH staff are also well skilled at considering multiple aspects, as is always demanded in the study of ecology.
Council refused to accept the RFS advice for a strategic bushfire study which would have allowed sensible zoning rather than trying to rely on a clumsy and inadequate draft DCP to mitigate fire risks. Council took an obstinate illogical position and suggested the fire study would map the entire shire as fire prone and defiantly pushed ahead with weak protections. It is important to note that the RFS has not, I repeat not, provided comment on the draft DCP so the RFS has not endorsed it. The draft DCP cannot be adopted. The threat to the public of inadequate protections is far too dangerous.
It beggars belief that in a time of drought, heightened bushfire threat, when emergency services are stretched, and it is predicted that this will be the more common situation into the future, that this Council does not ensure that the draft DCP is endorsed by the RFS. The Council insisted on zoning which encourages developments and dwellings in amongst heavily forested areas that cannot be defended.
After the fires of Black Saturday, Canberra 2003, and Tarthra 2018 there have been numerous investigations into what contributed to the loss of lives and property. Sighting of buildings in defendable positions is one of the key findings. Having access to the fire front is critical. Having access to escape routes is critical. All of this was ignored by Council until they were forced to start to compromise by the Department of Planning. Unfortunately, the Council solution of the combined draft DCP and DA process is obviously clumsy and inadequate. Several agencies warned Council about this. Agencies have strongly suggested to Council that sensible zoning and minimum lot size is the better planning instrument. How can this council be prepared to ignore expert advice and put the tourist attracting environment, the lives of firefighters and citizens at risk? The reality is that fires are already becoming more catastrophic due to the consequences of climate change and this clumsy and inadequate draft DCP only increases the risks. As Margaret Thatcher stated in 1989: “It is mankind and his activities that are changing the environment of our planet in damaging and dangerous ways.” (call for United Nations treaty to combat climate change).
Agencies suggest that relying on the DA and a DCP will inevitably result in land owners having unrealistic development expectations from an ambiguous environmental planning instrument. The DA and DCP are the wrong planning instruments at the wrong time. The RFS, OEH and Council will be swamped by inappropriate proposal just because the council obstinately refuses to provide appropriate planning zones. The rejection and subsequent challenging of expensive DA’s will lead to numerous legal battles because of the unrealistic development expectations suggested by the 84 RU1 land use possibilities and 75 RU4 land use possibilities. As a result, inappropriate DA’s could be forced through. An obscure “Note” in a DCP Schedule is not going to solve this. There are numerous examples around the shire where DA’s weaker guidelines and controls have not stopped excessive and destructive clearing in Endangered Ecological Communities; as can be seen at Broulee, Mossy Point, and Long Beach.
I am a scientist and I have worked in the ecology field for over 30 years. However today I want to emphasise the risk to human lives as nobody seems to care about the risk to our endangered species and habitats. The Council has refused to accept any of the OEH serious concerns as I have documented in specific detail in my extensive submission to council (2 September 2019).
Now is the time for Council to accept the advice of the 6 state agencies subject-matter experts and to listen to the community and amend the Planning Proposal (ERLPP) to allow for a more sensible LEP. Now is the time to allow the many good professional staff within Council to express their valid concerns about the draft DCP. The permanent long-term consequences on the shire are far too great for them to remain silent. The risk to numerous human lives alone is severe and real. The draft DCP is so clumsy and inadequate it cannot be adopted.
My concern now is that because of pressure (from the ESC Director of Planning, the Mayor and most unusually the involvement of the Local Member Andrew Constance in intricate details best left to the RFS and OEH), the RFS and OEH position could be eventually watered down somewhat resulting in flow-on consequences. There will be an increase in what resources (personal and equipment) the RFS and OEH will have to invest to deal with the workload consequences of the ESC refusing to use appropriate zoning. More RFS staff will be put at unnecessary risk because the ESC refuses to use appropriate zoning.
Several State agencies have strongly suggested to ESC that sensible zoning and minimum lot size is the better planning instrument. Agencies suggest that relying on the DA and a DCP will inevitably result in land owners having unrealistic development expectations from an ambiguous environmental planning instrument. The DA and DCP are the wrong planning instruments at the wrong time. The RFS, OEH and ESC will be swamped by inappropriate proposal just because the council obstinately refuses to provide appropriate planning zones. The rejection and subsequent challenging of expensive DA’s will lead to numerous legal battles because of the unrealistic development expectations suggested by the 84 RU1 land use possibilities and 75 RU4 land use possibilities. As a result, inappropriate DA’s could be forced through.
The dDCP does very little to diminish the unrealistic development expectations or strengthen the enforcement of the DCP guidance document. ESC has a poor record in following up non-compliance by landholders and developers who do not co-operate, as many recent examples demonstrate. The bushfire risk and environmental impacts of all these additional land use constructions and facilities in these existing zones have not been included in the dDCP. The dDCP need for very large 10kw APZ’s in HCV land will undermine one of RFS and OEH key objectives of protection of environmental assets.
There are 247 new dwellings (or eventually as many as 494 dwellings with new dual occupancy provisions) eventually added to the existing housing stock. These new dual occupancy provisions would also permit an eventual doubling in existing dwellings by 1,330 new dwellings, which in total equates to over 1,800 new dwellings (137% increase) spread across the landscape including steep forested areas that have a high bushfire risk. Each of the 1800 new dwellings could have 2 or more lives in them. It will be of no exaggeration to say, that the resultant coronial inquiry will be shocking to watch as council puts the last nails into the coffins of the many victims resulting from their obstinate extreme position.
If the dDCP requires 100m clearing for 10kw APZ’s, then 3.3 ha of clearing for a NSW average sized new home. With sheds on it then it would be 4.6 ha. This will eventually result in large areas cleared in many of the heavily forested areas of the shire.
The number of dwellings is not the final extent of changes in the ERLPP. What seems to have been not fully appreciated is the RU land use zone potentially allows for an increased large range of facilities and constructions such as the following and much, much more: Health Services Facility; Group Home; Educational Establishment; Child Care Centre; Seniors Housing; Respite Centre, Tourist accommodation facility, Function Centre; Entertainment Facility; Place of Public Worship. None of these concerns about inappropriate land uses have been addressed by the dDCP.
What seems to have been not fully appreciated is that Schedule 4 (Land Requiring Additional Bush Fire Protection Measures) within the dDCP completely ignores the large areas of the Shire that have always had a “Rural” zoning and will remain as “Rural” zoning. What has been ignored is that existing “Rural” zoned land will dramatically increase the number of land uses permitted on these rural lands through the use of open land use tables with a multitude of facilities/constructions possible (e.g. land already zoned RU1 will have a 60% increase in land uses and RU4 land will have a 142% increase).
The bushfire risk of all these additional constructions and facilities in these existing zones have not been included in the Schedule 4. The RFS has made no objection to 19 Areas based on there supposedly being no increased ‘dwelling’ density.
What is ignored is the RU land use zone potentially allows the following and much, much more: Health Services Facility; Group Home; Educational Establishment; Child Care Centre; Seniors Housing; Respite Centre, Tourist accommodation facility, Function Centre; Entertainment Facility; Place of Public Worship. How are these facilities going to be protected? What are the consequences of all this APZ clearing? ESC response: nothing, silence. Nothing to alert any unrealistic expectation proponents. ESC needs to alert proponents with unrealistic expectations that these land uses and more are not allowed on these Lots. A clumsy ineffective way of doing this would be to put a list all the prohibited facility-generating land uses into the DCP. A much more sensible way would be to zone it appropriately rather than obstinately persisting with inappropriate zoning.
The Schedule 4 only deals with the changed-zone or changed-lot-size “Areas” identified in the previous Rural Lands Strategy (RLS) and the ERLPP documents. The Schedule totally ignores the multitude of facility constructions possible that are not strictly “dwellings” but are where people will congregate and need bushfire protection. The ESC has only partially addressed some of the RFS concerns within the dDCP. In many cases the dDCP has omitted the RFS concerns about specific Lots. The vast majority of OEH concerns have been completely omitted.
We need to insist that the specific concerns of the 6 State agencies are accepted. The dDCP fails to resolve the concerns of the RFS and the OEH and makes no attempt to address the concerns of DPI Fisheries, DPI Agriculture, DPI Water, Local Land Services, the oyster industry or the community. The permanent long-term consequences on the shire are too great to allow this ill-conceived dDCP and ERLPP to proceed.
The ESC failure to response to some parts of the public submissions helps to expose what filters the council managers are viewing things through when developing the dDCP.
· The ESC has failed to provide a response to any of Submission 73’s comments on specific Area by Area concerns about “the ESC only partially addressing the RFS concerns within the dDCP. In many cases the dDCP has omitted the RFS concerns about specific Lots. The vast majority of OEH and other agencies concerns have been completely omitted.” 32 specific detailed Area by Area concerns and concerns about specific Lots have been ignored by the ESC. How can the dDCP be adopted when concerns in public submissions have not even received a response from ESC?
· The ESC has failed to provide a response to: “The concerns raised by the government agencies and the community about the Eurobodalla Rural Lands Planning Proposal are too important to be put into a DCP which is a non-statutory guidance document that can be varied or ignored by ESC.”
· The ESC has failed to provide a response to concerns about a draft vegetation map and a limited “biodiversity values map” simply placed in a DCP where it will have only an advisory/’guidance’ role.
· The ESC has failed to provide a response to concerns about the exclusion of data on Corridors and Endangered Ecological Communities within the “biodiversity values map”.
· The ESC has failed to provide a response to: “Have the concerns raised by other government agencies such as DPI Agriculture, DPI Water, DPI Fisheries and Local Land Services been similarly addressed [in the dDCP]?”
The summarised ESC response to all the public submissions was provided in Table 1 in dDCP Agenda 24 September 2019. The responses also exposes what filters the council managers are viewing things through when developing the dDCP. The following critique of the ESC response is dealt with by each row of that table, starting from row 1 through to row 16 of that Table.
· Row 1. ESC suggests a negotiated outcome. This is non-sensical as the RFS has not provided a comment on the dDCP hence no outcome has been obtained since negotiations have not concluded.
· Row 1(b). The ESC response to concerns about producing a dDCP pre-ELEP 2012 are based on a flawed assumption that the ELEP 2012 will be put in place without change. This is not true according to what the Department of Planning states in any of their correspondence or their public media statements. Instead the Department insists it has definitely not made a decision and are still considering the merits of the RLPP.
· Row 3. ESC suggests that locating the biodiversity clause and subsequent map in the dDCP will achieve the same outcome as having the provisions in the ELEP 2012. This begs the question … why change it then if it is the same, particularly when it ignores all the agencies advice who advise it is definitely not the same?
· Row 4. ESC suggest Council has not observed any patterns of issues related to land use conflicts. Other agencies definitely suggest otherwise. Why not accept their advice and the need for sensible zoning? Planners need to plan ahead rather than blindly waiting for issues to occur which is then too late. Why does ESC not accept the other agencies professional opinion?
· Row 5. ESC states feedback from OEH and RFS was used to inform the dDCP. This vital information needs to be automatically provided to the public by ESC as the public also needs this advice as part of the Agenda package so they can also use it to inform their assessment of the dDCP. If ESC need it to inform the dDCP then the public also needs to be automatically provided with it.
· Row 6. ESC’s flimsy response about the word “Ignored” vs “addressed” plays with semantics as it is blatantly obvious the ESC has not accepted other agencies advice. ESC virtually admitted that when it repeatedly stated it was a simple “professional disagreement”. If they were genuinely “addressed” please provide the examples of where ESC has changed their plan because of the subject-matter experts.
· Row 7. Schedule 4 does not address all the land identified by the RFS that requires additional bushfire protection. RFS specifically indicated they were identifying only ‘dwelling’-related activity and not major infrastructures filled with people. RFS specifically states that the lack of objections are conditional on “no increased density”. The vast number of new land uses available on these same Areas/Lots breaks that conditional approval. Those Lots have not been identified in the Schedule 4.
The fact is the RFS required a strategic bushfire study which was rejected by ESC. RFS wanted sensible zoning not piecemeal DA by DA assessment.
· Row 8. ESC pretends Schedule 4 addresses ‘developments’. This is not true and in fact the word ‘dwelling’ is the only word used in the original RFS submission table (12 July 2016) that all subsequent comments are based on. Many of the proposed new land use developments are in fact prohibited by the RFS in RU zoned land and many are SFPP uses which would not receive approval with the conditions applied in the Schedule 4 table. Remember that the RFS has not approved the dDCP because it has not commented on it. ESC is verging on being criminally negligent by encouraging such uses in areas that cannot be defended from fire.
· Row 9. ESC is ignoring reality. ESC would be well aware that significant clearing occurs despite any “biodiversity and tree preservation” controls. ESC just needs to look around at the many examples including at Broulee, Mossy Point, Long Beach. It is obvious controls are not enforced and they are ineffective at preventing significant clearing.
· Row 10. Finally, ESC admits that their ridiculous use of “Area”-identifiers rather than specific “Lots” with “Suburb”-identifiers in the RLPP was very unclear. They admit that is why they changed from “Area” to “Suburb”. ESC has ignored the concern that this change was not cross linked by including the “Area”-identifier with the new “Suburb”-identifier so any proposal changes could be tracked. Many agencies found the use of the vague “Area”-identifier very frustrating and unclear –- maybe that is what ESC wanted?
· Row 12. ESC suggesting rural setbacks have been appropriate, completely ignores that some of the vast number of new land use will have very different large structures and a disturbing visual and physical presence in the rural landscape.
· Row 13. ESC directs responsibility for a user-unfriendly Biodiversity Values Map to OEH. ESC needs to address this as they are directing proponents to the site. How do they expect proponents to use it without some assistance from ESC?
· Row 14. ESC admits their native vegetation map is not user friendly. How was the public expected to assess the adequacy of the dDCP if the public could not examine it to investigate the adequacy of the dDCP?
· Row 15. The ESC response misrepresented my concern (Submission 73). The “Note” is an inadequate way of ensuring the consultation ESC acknowledges is best practice. In fact ESC admits the “Note” is only effective “to some extent” in one of their response in Attachment 2 (73:15). It is far more effective to first provide the correct land use zoning in the first place and this was the strong advice from multiple agencies. Of course the ESC did not accept any of that advice.
· Row 16 ESC pretends there is only a small number of lots and dwellings involved in the RLPP. This is bunkum as the dual occupancy changes will eventually allow over 1,800 dwellings as well as a vast number of new facilities and extensive constructions because of those new land uses spread across the Rural zone. This appears to have been deliberately ignored and hidden in an attempt to force the RLPP through.