A Better Eurobodalla (ABE) Public Forum Presentation Regarding NoM 22/001 Zombie Developments & PSR22/001 Draft Climate Action Plan 2022-2032
8 March 2022
Good morning and thank you for the opportunity to address Council and the community this morning regarding Notice of Motion 22/001 Zombie Developments & PSR22/001 Draft Climate Action Plan 2022-2032.
I am presenting as Co-Convenor of A Better Eurobodalla (ABE), a community forum dedicated to having open and inclusive government in our region. ABE expects that before governments, at any level, make decisions that will impact their communities, they will undertake broad and meaningful consultation, listen to and share expert advice, and proceed using a transparent decision-making process so that the community understands who makes decisions, when and why.
ABE has applied these principles to Notice of Motion 22/001 Zombie Developments, which leads it to support the motion before Councillors today. ABE notes that the NoM specifically refers to the 1984 subdivision development consent at Anderson Street Tuross Head. This development is on the foreshore of Coila Lake, and has attracted widespread community interest and concern.
As part of its analysis, ABE has reviewed undertakings given by candidates during last years Eurobodalla Council election.
ABE notes that at the Mayoral Candidate Forum at Kyla Hall, all candidates, with the exception of Rob Pollock, supported the following motion which specifically referenced this development:
Some years ago, Council had made a commitment to the community of Tuross Head to present the DA to Council for determination. Will you support Councillors taking back this delegation and making decisions on all major development applications to ensure community, cultural and environmental impacts are rigorously assessed before proceeding?
Considering that, it is concerning to see reports that this development has been approved under staff delegation on 2 March 2022, without any apparent involvement of Councillors. The community has put trust in its councillors, so ABE trusts that this example will not provide a template for other campaign undertakings to be cast aside so rapidly or readily.
It is worth recording that in January 2022 in response to receiving the amended plans for the Anderson St development (MDA0124-20), the Tuross Head Progress Association provided a submission to ESC (copied to Councillors) noting, among other thing, that:
the original Council DA approval for this proposed residential sub-division was granted in circa 1983/84 – and therefore subsequently there have been a number of vital changes to the environmental aspects that must now be met under current mandated guidelines before any development and related construction for such large scale sub-divisions can proceed.
And further requested:
Council to call for an Environmental Impact Assessment ahead of this MDA0124-20 being progressed for its final approval by the newly elected Council (and not dealt solely by Council staff). This will ensure that community expectations in respect of environmental aspects are met, and in particular the adequate protection of native flora and fauna that has already been outlined in other submissions lodged with your Council for the updated MDA0124 development plans.
Concerns regarding ‘zombie developments’ are important and valid, and formally bringing this issue to the attention of the NSW Planning Minister is a useful step which builds upon recent reforms to the NSW planning system. These have included a new clause (124AA) which clarifies that “physical commencement” is specified to not include the following:
creating a bore hole for soil testing;
removing water or soil for testing;
carrying out survey work, including the placing of pegs or other survey equipment;
acoustic testing;
removing vegetation as an ancillary activity to those activities approved under the development consent; or
marking the ground to indicate how land will be developed.
It is notable that this clause appears to unwind much of the case law that had previously found that some of these works were sufficient to constitute physical commencement.
While the situation at Anderson Street, Tuross Head is complex, ABE considers that Council, to operate in good faith, has an obligation to clearly explain the situation to the community, and ensure that water quality, biodiversity, Aboriginal heritage and flooding and drainage impacts are considered in a detailed and integrated manner reflecting contemporary knowledge and standards.
In this regard, it is concerning that documentation for the project currently available on the ESC website does not contain any Aboriginal Heritage studies, or any specific details regarding the activities and their related date/s which constitute the “physical commencement” of the development. It seems remarkable that such critical documentation has not been provided for public information on a 71 lot subdivision on the shores of a sensitive coastal lake which has a high level of community interest.
Notice of Motion 22/001 presents an opportunity to address this important issue more broadly for the NSW planning system, and ABE urges Councillors to support the motion.
PSR22/001 Draft Climate Action Plan 2022-2032: ABE supports the exhibition of the draft Eurobodalla Climate Action Plan for public comment. ABE commends Council for preparing this document, and notes the significant amount of community consultation which has already occurred.
ABE supports broadening the scope of the plan to include considering how Council can assist the community in the mitigation of, and adaptation to, climate change. It will be necessary to continue to harness the knowledge, skills and experience available within the Eurobodalla community in order to achieve the economic, social and environmental benefits that can be delivered through the implementation of the plan. Engaging members of the community in this process will lead to a better and more comprehensive result.
Thank you for your attention,
Bernie O’Neil
Co-Convenor
A Better Eurobodalla
7 March 2022 Below: It appears that the "physical commencement" was not done by the developer but instead was done by Council to realign the sewer system to accommodate the subdivision. While Council write in 1985 that they deem the work is physically commenced on the subdivision there needs to be questions asked such as: "Was that work carried out on subdivision land?" and if so "Was the work carried out located for the original subdivision layout and, if so, is that preparation work still relevant in 2022 given that the block sizes have been reduced for more parcels and the overall subdivision layout changed on several occasions?" A copy of the Council Plan M2033 will now be requested under a GIPA.
