Using the Land and Environment Court (L&EC) to exclude effective public dialogue on development appears to, once again, be being used to drive forward development in the Northern Rivers. The recent decision by the Northern Rivers Planning Panel (NRPP) to approve a Clause 55 variation of the controversial Iron Gates development in Evans Head when the Richmond Valley Council (RVC) assessment clearly stated that the application had not been supported by ‘sufficient information’ and that master plan application had been undetermined due to ‘outstanding issues’ demonstrates how the threat of litigation from the developers lawyer apparently swayed the committee says Dr Richard Gates from the Evans Head Residents for Sustainable Development Inc.
‘The decision to approve the amendment dated 13 September was in direct contradiction to recommendations to the NRPP that the variation not be approved,’ said Dr Gates.
‘No information was made available by either council or the NRPP as to how the decision was reached leaving the public puzzled about why the NRPP decided to approve the proponent’s request.
A letter from the proponent’s lawyer Mills Oakley’s Aaron Gadiel, listed on the NRPP website, was not published at the time [of the decision] leaving the public in the dark about its content and whether or not it played a role in the NRPP’s decision to go against the recommendation to reject the developer’s fourth amendment to the Iron Gates development application.’
The letter has now been published but it is clear from the letter that the developer, Graeme Ingles, of Queensland based GoldCoral Pty Ltd, believes that proceeding to the L&EC will be the most effective way to push through the development to completion.
‘In the light of the report [prepared by the Department of Planning, Industry and Environment] and the similarly negative letter from Ms Jones of Richmond Valley Council (also dated 24 August 2021) — the applicant has determined that it will commence a Land and Environment Court appeal. The applicant proposes to use this process to progress the development application through to determination,’ stated Mr Ingles lawyer, Mr Aaron Gadiel, of Mills Oakley.
The letter went on to say that ‘The applicant’s hope is that this matter will be able to be resolved by a section 34 agreement in the early stages of the proceedings’.
Speaking to The Echo Dr Gates said that ‘It was interesting that the Mills Oakley letter said that it “will commence a Land and Environment Court Appeal” when there had been NO decision at that point about whether or not the amendment to the Iron Gates should be accepted by the NRPP. We take it to mean that if the NRPP refused to accept the amendment to the Iron Gates plan that it would take the matter to Court for resolution.’
Shuts out public
However, Dr Gates said that a further reading of the letter suggested that regardless of the outcome of the meeting of all parties on 6 September, it appeared that the proponent wanted the whole matter of the Iron Gates put into the Court system for determination with a preference for the matter to go to a ‘conciliation’ meeting under Section 34 of the Land and Environment Court Act 1979 where a single commissioner rather than a judge hears the case and seeks agreement with the parties involved.
‘Should this happen it will effectively shut out the public with the problem being how will the public interest be served when the public has no say. We would have to rely entirely on all the arguments which have been put against this inappropriate development being put on the public’s behalf. However, given the current push for development in the State we might find that this critical information is not considered at all in any proceedings unless we are there to make sure those views are put.’
Previous DA removed
Development of the Iron Gates site has been pushed since the 1990s with the existing approval for a DA being removed in 1997 following legal action against the developer. The L&EC required that the developer do approximately $2m of remediation which has never been done.
Dr Gates points out that the developer has cost the RVC ratepayers significantly over the years in relation to this development that is in a high fire danger area and that locals have argued is unsuitable for development.
‘We certainly cannot rely on Richmond Valley Council. It has an appalling past history on the Iron Gates matter which has cost ratepayers dearly. You only have to look at its DA tracker for development information today to find that its latest postings are in 2019 and the media release of 8 September is less than forthcoming about what really happened on 6 September. No mention is made of potential litigation raised by the applicant,’ said Dr Gates.
However, Dr Gates said the fact that the chair of the NRPP, Mr Paul Mitchell, had made the Mills Oakley letter available to the public in the interests of transparency was important. None-the-less he said that various community groups are currently pursuing legal advice about this and other matters relating to the Iron Gates.
Dr Gates said ‘it is still not clear if the developer had commenced proceedings in the Land & Environment Court as set out in the Mills Oakley letter of 31 August. Just because the matter has been referred back to Richmond Valley Council for assessment does not mean that litigation or the threat of litigation is not in the wind.’