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Byron Shire
December 4, 2021

Can Richmond Valley Council ensure Iron Gates assessment is unbiased?

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Clearing and burning on the northern side of Iron Gates property in 2014. Photo supplied

The Northern Regional Planning Panel (NRPP) chose to go against the Department of Planning, Industry and Environment (DoPIE) recommendation that the controversial Iron Gates development application (DA) at Evans Head not be given another opportunity to seek approval in September.

This decision has meant that the RVC is once again assessing the DA even though they told the NRPP that ‘It was unlikely to achieve a different outcome because of unresolved outstanding issues, which would exhaust further resources, and… The amended application had not been supported with sufficient information to address certain issues and that only summarised information was available from previous supporting materials but not supported by necessary additional information to address outstanding issues.’

The Iron Gates development has been fought by the community over the last 30 years when the property was rezoned for residential development in 1983 with the developer from the Gold Coast, Graeme Ingles having pushed for development since the 1990s. This current DA has been with the RVC for more than seven years.

Federal Court Native Title Determination at Evans Head. Photo supplied

Persistent, effective, community opposition to residential development, including from the Native Title holders and the EPA has landed the development in the courts including for damage to the environment and Aboriginal materials.

The Land & Environment Court ordered remediation including the filling in of large drains in 1997. That two million dollars worth of restorative work has never been completed.

Some of the drains that the developer was ordered to fill that still hasn’t been done over twenty years later. Photo supplied

Legal advice provided to Richmond Valley Council on 11 November 2014 states those Orders still stand.

Assessment bias

However, it is the potential problem of an ‘apprehension of bias’ because of an agreement between the developer and Council, which looks very much like a planning agreement, that was settled in a Queensland court in 2008 that has drawn concerns from the local community.

‘How would a fair-minded ordinary person with knowledge of the objective facts of the Iron Gates case and the Agreement with the developer see Council’s role and objectivity in making a development assessment on the DA case provided by the developer?’ asked Dr Richard Gates, spokesperson for Evans Head Residents for Sustainable Development Inc.

‘Might that ordinary person entertain a “reasonable apprehension” that Council might not bring an impartial and unprejudiced mind to the assessment process notwithstanding protest that it would?

Protest at time Iron Gates Drive being bulldozed through Crown Land circa 1991, 30 years ago. Photo supplied

‘And does Council now have an obligation because of that court-based agreement to comply with it?  Is it “fettered” by the agreement? What happens if there is a challenge from the public contrary to that Agreement? If council goes against the Agreement will that put council back into court? If council sticks to the agreement, will that land council in court because it has failed to act independently and was biased in its assessment?

‘These questions need resolution particularly given that the agreement appears to be the actual template for the current development application. Council appears to be silent on the matter.’

Dr Gates said today that the current Iron Gates assessment process has all the ‘hallmarks’ of an Apprehended Bias problem no-one seems to be addressing.

Flooding on the Iron Gates where building and infrastructure will be. And they say it doesn’t flood! Photo supplied

Quite apart from this potential problem Gates said his group had ‘serious reservations about the Agreement itself including the fact that:

  • It is based on out-of-date bushfire information. The date of the report is November 2008. A lot has changed since then including changes to bushfire legislation and risk assessment particularly given the 2019 bushfire disaster and climate change. There does not seem to be any opportunity given in the Agreement for amendment.
  • There has never been a test of the validity of the agreement against such matters as wildlife corridors, vegetation maps, flood maps and so on. It was accepted at face value that the expert Agreement stood. There was no independent scrutiny or peer review as far as we know.
  • The public has never had the chance to challenge this material. It has never been put on display for public comment. An agreed position does not necessarily mean it has community approval or agreement.
  • The meeting was held at the direction of the Court. We do not know the instruction of the Court or what the Agreement was meant to achieve. We all know that the directions you are given will influence what you do. It is called a ‘framing bias’. We do not know what steps the Court took to assure the validity and independence of the agreement. This becomes a vexed issue when one of the parties is in the process of being sued for a large sum of money. What steps did the court take to assure itself that the agreement was independent and had a strong empirical base and was not a product of some form of compromised agreement to the disadvantage of ratepayers who were left out? The community has certainly not been privy to the reasons for the Agreement nor how the experts were chosen for the job. Did the Court choose the experts?  What criteria were used for their selection? Had any of the experts appeared in any of the Court cases to do with the Iron Gates in NSW previously?
  • An agreement about the environment and planning matters made in the Queensland Court may or may not have any standing in NSW Courts?
  • The Agreement only considered bushfire and ecological issues. There was no consideration of the future with climate change and flooding of the site yet these are critical issues in any land use planning assessment particularly these days when we are far more aware of risk and climate change and such issues for consideration are now enshrined in legislated assessment, and the Iron Gates land is subject to flooding. Part of it sits in a SEPP 14 Wetland. The 2008 agreement is based on very narrow considerations and we don’t believe passes contemporary standards for proper planning assessment.
  • The Agreement was prepared before the Local Environmental Plan (LEP) was developed for Council in 2012. Council declined to hold a Public Hearing about the LEP at Evans Head and so the public did not have a chance to challenge this material in a public forum.
  • No consideration appears to have been given to ‘edge effects’. Edge effects are basically the degradation of isolated pocket of land and vegetation for preservation because of human abuses and uses: Pet droppings in the bush, rubbish dumping, weed and garden escapee invasion, use of bush by kids for cubby house building, informal tracks for shortcuts or other purposes, insufficient critical mass for preservation of the integrity of the area, and so on.
  • There was NO consideration of Aboriginal or other related cultural heritage matters which are now heightened because of Native Title Determination on Crown Lands to the north, east and south of the Iron Gates properties and the road to the Iron Gates running through one of those properties. The land has been identified as being of significant cultural heritage value to the Bundjalung Nation (see Riebe, 2016).
  • The report is predicated on access via the Iron Gates road through Crown Land, a contentious issue.
  • The report is predicated on existing damage to the site caused by the developer, without remediation.’

Blue Pool Road clearing, June 2014. Photo supplied

Dr Gates told The Echo that the DA should have been thrown out long ago and that ‘and the developer made to remedy the damage he created’.

‘It is important for Council to be given an opportunity to make an assessment but that assessment needs to be subject to close professional scrutiny because of council’s longstanding quarter century relationship with the developer, and the Supreme Court Agreement. However, the risk of ‘apprehended bias’ stands out and must be addressed,’ said Dr Gates.

 


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