Usher: How is your APZ Reference of any Relevance to Broulee?

In conjunction with the dissection of the APZ issue there is an additional reference which you can use to raise further questions with Council. On Council's website the official media release says: A Council-owned road reserve of roughly 2,300 square metres between the community land and the estate also had approval for some clearing under Rural Fire Service asset protection zone requirements (APZs).

Now consider the RFS publication STANDARDS FOR ASSET PROTECTION ZONES

This publication unequivocally states on page 4 : “The APZ should be located wholly within your land. You cannot undertake any clearing of vegetation on a neighbour’s property, including National Park estate, Crown land or land under the management of your local council, unless you have written approval.” (bolding added for emphasis). So, the only possible way that the land in question (Block 3) could have been legally cleared is if Council gave its WRITTEN permission. Lindsay Usher stated on June 29th 2021: "A Council-owned road reserve of roughly 2,300 square metres between the community land and the estate also had approval for some clearing under Rural Fire Service asset protection zone requirements (APZs)." It is in fact doubtful that even if Council has given written permission that it would be lawful, since it appears that Council may not actually have the delegated legal authority to issue such a permission on Community land.

So the key thing to now ask for is a copy of Council’s written permission to undertake the clearing. If it does not exist, then the clearing is clearly unlawful.

If written permission has been given by Council, then the question becomes one of did they actually have the legal authority to do so?

For a bit of background Mr Usher, his legal team, the General Manager and the Councillors might like to remind themselves of the following relevant legislation (The Local Government Act). Part 2 of the Act - Public Land and Division 2 – Use and management of community land, which talks about what governs the use and management of community land and the core objectives for the management of community land

It is in doubt that Council had the ability to provide approval for clearing of the land at Broulee, particularly since it is community land which supports an endangered ecological community.

Council is required to keep a register of all land under its control, lists of the classification of the land and whether or not there is a plan of management for the land. Had they bothered to look they would have discovered in the Executive Summary of Council's Plan of Management Broulee & Mossy Point Reserves Adopted 25 November, 2003 that it states: During the development of this Plan of Management community comment was sought on the future use of the land at the north western corner of Broulee Road and Clarke Streets. This land was previously classified as Operational Land (land which Council can use in performing its functions or can sell as an asset). In order to maintain a patch of natural bushland and to reflect the community’s desire to preserve this bushland, the land was re-classified as community land and included in this plan. This plan identifies many other opportunities to improve the community’s access to community land in Broulee and Mossy Point. With grant funding and community support, these projects will improve public use and enjoyment of community land in Broulee & Mossy Point. Irrespective of whether Mr Usher continues to call the land now cleared an Unformed Road the INTENT of Council in 2003 and their INSTRUCTION to staff was to close the road and add the newly formed Lot and DP to the Plan of Management. This is a simple task yet Council staff did not do it.

Was this an act of convenience to suit a staff agenda? We know that the staff had recommended that the three blocks be sold in 2003. Their intention in 2003 was to close the unformed road, convert it to Operational land and then sell all three blocks

Above: in 2003 it was Council's clear intention to sell the three blocks of land. This intent was overturned when Council instead voted that the land at the corner of Broulee Road and Clarke Street be re-classified as Community Land and remain as bushland. 99 written submissions were received in support of this option. In addition, a petition containing 394 signatures was submitted in support of this option. The development of the Plan of Management resulted in the reclassification of the two lots as Community Land with the instruction that the Unformed Road is to be closed and added to this Plan of Management as Community Land once this process is finalised. source IMPORTANT NOTE The 2003 report to Council erroneously claimed that the two parcels of land known as The Triangle was Operational. Council clearly wrote in the Plan of Management (page 12) "Prior to the adoption of this Plan of Management the following lots were classified as Operational Land: ß Lot 9 (part) of DP 758168 Sec 19 (indicated by number 1 on the map below); and ß Lot 8 (part) of DP 758168 Sec 19 (indicated by number 2 on the map below)." That information was incorrect. The land was Community and had been clearly recorded as Community Reserves in Council's 1997 Plan of Management for Community Land - POM 101 - the Plan of Management was compiled by the Council's Asset Management Officer and adopted by Council in 1997 - the plan extract below is as per 12th June 2001

The extract above from 2001, two years before the 2003 report went to Council shows that the comment made, justifying the proposed sale was to suggest the land was Operational while the 1997 Plan of Management was in pace and suggested otherwise. But there is more to this than meets the eye Since 2005 the Office of Environment has advised Eurobodalla Shire Council and developers that continued cumulative clearing of remnant Bangalay Sand Forest in the Broulee area is not acceptable and a more strategic approach to development is required. In 2011 OEH and Department of Planning and Environment provided financial support to carry out a biodiversity certification assessment of areas at Broulee and Moruya. In February 2013 a Biodiversity Certification Assessment Methodology (BCAM) was used to conduct a Biodiversity Certification Assessment of proposed urban expansion in the Broulee area and planned development at Moruya Airport. A detailed report was compiled. and recommendation submitted and adopted The BCAM was used to "facilitate an equitable, transparent and scientifically rigorous outcome in addressing competing urban development and biodiversity conservation issues within the Broulee area." An assessment was made of the 2013 biodiversity values within Broulee Biodiversity Certification Assessment Area, with an assessment of the biodiversity values to be lost or decreased as a result of future urban and airport development, and an assessment of the increase of biodiversity values within an identified Conservation Area. Basically the premise was to destroy habitat at one site and commit to preserving habitat at another.

Above; The image above clearly indicates that in 2013 Eurobodalla Council had advised their consultants that The Triangle was earmarked for Urban expansion and was within the Broulee Urban Precinct Development Area. In 2013 Council was intending to develop the land. Council staff, stating publicly in 2021, that they did not know The Triangle was community land might indicate that back in 2013 they did not know this either, and most likely considered The Triangle was Operational and able to be developed advising the consultant which explains why The Triangle has been added to the map above. In the Eurobodalla Settlement Strategy Directions for Eurobodalla Shire 2006-2031 adopted in December 2006 the Council states:

Yellow-bellied Glider The Yellow-bellied Glider is a native forest-dwelling arboreal mammal listed as a vulnerable species under the Threatened Species Conservation Act. Council currently has a policy for the Conservation of the Yellow-bellied Glider in the Broulee coastal plain that aims to ensure the long-term existence of the species in that area through retention of suitable habitat. Protection of its habitat is an essential requirement for ensuring long term survival of the Yellow-bellied Glider across the lowland coastal areas of the Shire. Protection of significant areas of glider habitat, as an ‘umbrella species’, will also provide forest habitat for other forest-dwelling native fauna including several other threatened species.

This policy does not consider the impact of development or activities on other listed Threatened Species that may or may not occur in the area from time to time. In the Conservation of the Yellow-bellied Glider in the Broulee Policy area Council clearly state under Legislation they will "grant consent or approval for development or activity on land to which this policy applies that is not in accordance with this policy, where it can be demonstrated that the development or activity will not significantly impact upon Yellow-bellied Gliders or their habitat." Their policy supports section 79C of the Environmental Planning and Assessment Act 1979 and section 7.3 of the Biodiversity Conservation Act 2016 What we now know is that there has been considerable habitat clearing on the Unformed Road Reserve (known as Block 3 - yet to be closed Unformed Road by Council motion 2003). Development consent for a 48-lot stage of the housing estate near the southern entry to Broulee - on the corner of Broulee Road and Clarke Street - was approved by Council in February 2021. In May 2021 Council were advised that The Triangle was community Land and NOT Operational. This should have raised alarms in Council but it did not. Council were aware that the developer was going to clear Block 3, they had given permission according to Mr Usher, yet even at this late hour, having been advised by the community Council chose not to communicate their intention or to announce the land was to be cleared in coming weeks. The media release issued by Council’s director of planning Lindsay Usher dared to say, in the face of community outrage that "this development and the associated clearing is not new news." The Council media release failed to inform the community of the details of how the clearing came to be authorised and instead offered little more than spin, smoke and mirrors and obfuscation.

Aboriginal study of the area prior to clearing was not carried out The July 2020 Proposed Subdivision Stages 5C & 6C, Broulee Beach Estate, Broulee, NSW Aboriginal Cultural Heritage Assessment Report did not include the now cleared Block 3. The National Parks and Wildlife Act 1974 (NPW Act) is the primary legislation for the protection of some aspects of Aboriginal cultural heritage in NSW. One of the objectives of the NPW Act is: … the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including but not limited to: (i) places, objects and features of significance to Aboriginal people … (s.2A(1)(b)). Part 6 of the NPW Act is administered by the NSW Office of Environment and Heritage (NSW OEH) and provides specific protection for Aboriginal objects and declared Aboriginal places by establishing offences of harm. Harm is defined to mean destroying, defacing or damaging an Aboriginal object or declared Aboriginal place, or moving an object from the land. Anyone proposing to carry out an activity that may harm an Aboriginal object or declared Aboriginal place must investigate, assess and report on harm that may be caused by the impact. An Aboriginal Cultural Heritage Assessment Report report was prepared in respect of a proposed subdivision Broulee Beach Estate Stages 5C (Lot 77 DP 1229187 & Part Lot 95 DP1262807) and 6C (Lot 50 DP 837279 & Part Lot 95 DP1262807), Broulee, NSW (the subject area). The report did not investigate the Unformed Road Reserve (known as Block 3) as can be seen in the image below

Of interest in the above image are the APZ zones. Note that there is no mention of any Asset Protection Zone in the subdivision area of The Triangle In Council's Consent they state:

The above statement from Councils Development Consent

clearly indicates that Council was of the opinion in the 11th of February 2021 that the Clarke Street Road Reserve and Lot 89 DP 1093710 (see below) were to be developed.

Under the Development Consent for the Subdivision it states:

The Beagle has requested a copy of Sheet 2-7 referred to above. What has become evident in the research behind the clearing and the status of The Triangle is that Eurobodalla Council clearly intended to sell the Community land believing it to be Operational. The Council had already offered it to the developer. There is an existing constraint across the Unformed Road (Block 3) which is the old asbestos water supply pipeline into the town. Having now cleared Block 3 Council now intends to remove this pipeline and instead replace it to run along Broulee Road. This would then mean that The Triangle would be unencumbered. The intent to replace the watermain was already in place when Council sought to sell the land to the developer. Another point of interest is that the original Azure Court required a redesign having failed to gain the approval of the RFS who advised that they would not allow a Court which would see residents trapped with only one way out. A redesign of AZURE now has it also exiting across the northern section of the Unformed Road Reserve into Clarke Street.

Note that, as per the adopted Plan of Management for Broulee and Mossy Point Reserves the shape of Block 3 would impact on the new AZURE Avenue exit into Clarke Street. Once again this is clear reasoning why Council so desperately wanted to believe that The Triangle was Operational so that they could do as they pleased without any community consultation.

In a nutshell: The two lots that originally made up The Triangle were classified as Community Land and were recorded as such in the 1997 Plan of Management for Community Land - POM 101. Those lots were recorded as Community in a printout of that Plan in June 2001 Those two lots were recorded in Councils Reserves data base as Community Land - Natural bushland in 2002 Prior to Council shelving the in house Reserves Database and opting to purchase Technology One and move all the asset data across to a new platform and GIS the records clearly showed that The Triangle was classified Community. Therefore the statement made in 2003 that the two lots were Operational is FALSE. The intent at the time was to ensure that they were Operational so they could be sold. Instead the Council motion "reiterated" the community view point that the two lots should remain classified as Community. The instruction of Council in 2003 was to close the road and to incorporate part of the closure into the Plan of Management. Council staff did not do this. Irrespective of the current status the instruction and intention remains and should have raised alarm bells with Council staff. The Council has, over a period of time, indicated via different plans, that The Triangle was Operational. It was identified as playing a role in Bio-certification offsets, identified for Development in 2014. Council staff failed to recognise The Triangle in Council's Recreation and Open Space Strategy 2018 (ROSS) . This indicates once again the failure of Council to transfer the known property data across to their new Asset databases and GIS. (image below ROSS 2018)

It is little wonder that Council staff were adamant in February 2021 that The Triangle and adjacent unformed road reserve were Operational. Their own data had failed them. The issue now is to dissect what Council has done on the assumption that the land and Unformed Road reserve (yet to be closed and transferred to Community Land). It appears that they have given permissions to the adjacent developer. Council have allowed the clearing of the unformed road (yet to be closed and transferred to Community Land as per a 2003 directive). Council advises that the clearing was to provide an Asset Protection Zone for the adjacent development. Such an action is contrary to the guidance offered by the RFS “The APZ should be located wholly within your land. You cannot undertake any clearing of vegetation on a neighbour’s property, including National Park estate, Crown land or land under the management of your local council, unless you have written approval.” Council will be requested to provide evidence of such permission. In April 2021 Clr Maureen Nathan asked a Question on Notice of "When development is proposed, how does this impact Council and the NSW Government in terms of adding additional asset protection zones, and is there provision for this to be shared between private landowners and the owners of public lands?" Warren Sharpe, Director for Engineering answered: New development (and most development in general) is required to achieve their asset protection zones on their own land and not rely on public land. Council would typically only let a landowner rely on public land for an APZ where the land is already being maintained for another purpose, i.e. a park or an easement where a sewer mains runs. Note that there is an old water main through the Unformed Road Reserve that Council intends (and intended) to relocate prior to the vegetation removal. The key argument is around the word "maintained" as the Unformed Road Reserve that the water main traversed was NOT "maintained" nor is the water main within an easement. In regards to the question on APZs Warren Sharpe, Director for Engineering also said "In more recent subdivisions, the APZ has been incorporated into the lot and provided by ring roads with development on one side of the road only in new subdivision layouts. Planning for Bush Fire Protection 2019 covers these more recent subdivisions." It is not known if Council carried out an Aboriginal Heritage Study before doing so. A comprehensive study was done for the adjacent development but the study area did not include the now cleared unformed road reserve. Council will now be requested to provide evidence of a study on this land. Council's Conservation of the Yellow-bellied Glider in the Broulee coastal plain Policy that aims to ensure the long-term existence of the species in that area through retention of suitable habitat. The Policy states that a site study be undertaken prior to any action. Council will now be requested to provide evidence of a study on this land. The Council staff were well aware of the fact that The Triangle and adjacent part unformed road were Community land on May 14th 2021. There is no doubt that the staff knew at the time of the Council's commitment to the developer in regards to "gifting" the APZ and to allow the extension of Azure Court to become Azure Avenue accessing Clarke Street via the unformed road. Yet they said nothing to the Broule Mossy Point Community members at the time, knowing full well that the Community Land was to be cleared in coming weeks. Council had already put into motion the removal of the old asbestos water pipe servicing the township via the Unformed Road reserve to relocate the pipe along Broulee Road instead. This action would have seen the Council sell what they thought to be three sections of land to the adjacent developer unencumbered. That scheme has failed with the revelation that the land is Community Owned and that the Council asset and GIS system has failed.