A locally-based respected ecologist says the developers behind a large exclusive eco village proposal in rare littoral rainforest along Broken Head beach frontage are avoiding environmental scrutiny through loopholes.
Additionally, a scathing assessment of the development application by Council staff – released last week – recommends refusal in part owing to serious environmental concerns.
The Linnaeus Estate is located south of Broken Head, and has had neighbours concerned for some time that the unique biodiversity of the area will be under threat should wealthy developers gain DA approval to expand the existing footprint.
DA 10.2021.170.1 will be determined at an upcoming Northern Regional Planning Panel (NRPP) meeting on October 19 (www.planningportal.nsw.gov.au/planning-panel/mixed-use-development-206).
The NRPP overrides Council’s decision making, as the NSW government deems it is a significant development.
In the 1980s, an educational facility was proposed, and more recently in 2015, a community title (CT) rezoning was proposed.
Planning staff error
Yet after Council planning staff made a ‘fundamental error’ with its zone ‘label’, it has now morphed into a ‘Mixed use development comprising twenty-seven new eco tourist facility cabins, seven ancillary buildings including wellness facility, refuges, depot’, and associated ‘earthworks and vegetation removal’.
In May 2021, resident and actor, Chris Hemsworth, publicly opposed the development at Seven Mile Beach on his Instagram account.
Wildlife corridor
The staff assessment that accompanies the DA says, ‘Almost the entirety of the site is mapped within BSC and NPWS wildlife corridors’, and contains threatened flora and fauna.
Furthermore, staff say, ‘Much of the site is mapped as High Environmental Value, including the majority of mapped vegetation. There are a number of different native vegetation communities on the site, mostly in very good condition’.
Additionally, staff say in their report, ‘It is understood that Nyangbul representatives have objected to the proposal, stating that the proposed development area is an important ceremonial, dreaming and massacre site. On this basis, and separate to any detailed ecological assessment, the proposal is fundamentally not supported’.
Staff say the developer seeks a variation on the development control plan (DCP) around retaining ‘any listed ecologically significant areas on-site and incorporates ecological setbacks’.
The staff report reads, ‘Not only does the proposal impact listed ecologically significant areas, but it also includes multiple encroachments within the required ecological setbacks’. The report’s author does not support the variation request, ‘given the high biodiversity values present on the site, and the existence of managed, derived grasslands proximate to the existing development footprint’.
Owners of the The Linnaeus Estate, The Broken Head Coastal Foundation (BHCF Pty Ltd), told The Echo, ‘On the issue of biodiversity, it should be noted that the property is already subject to a Council approved Biodiversity Conservation Management Plan’.
‘Also, the much down-scaled amended application proposes no tree removal whatsoever.
‘Further, since the making of the application, the owners have registered on their title a Conservation Agreement with the Biodiversity Conservation Trust of NSW covering some 54+ha of the property, that will protect the HEV areas of the site, in perpetuity.
‘To be fair to everyone involved (both those in favour and those against this development), the community consultation process has resulted in modifications to the original DA that have resulted in a substantial reduction in the scope of the development and a significant expansion of the existing Council approved Biodiversity Conservation Management Plan’.
Secrecy around developer names
The Echo asked Brandon Saul, who has represented the developers in the past, for the full names of the developers behind the proposal. He said they all declined. A company search revealed only one name: Potts Point-based Steven Michael Duchen.
Yet The Echo obtained an email sent from Tony Tabatznik to mayor Michael Lyon on October 12, 2022.
Tabatznik claims that his family company, Scarlet, ‘was the original purchaser in 1996 and remains the majority shareholder’.
He wrote, ‘I was personally involved in the decision to purchase the land, together with Phil McMaster, an environmental architect, and Steve Duchen’.
Tabatznik says ‘minority investor’ Duchen was appointed trustee to the trust that Scarlet had created, and was ‘entrusted with power to make all decisions’.
He said, ‘The trust had as its stated purpose “to be educative, environmentally responsible and to act as custodian of the site for future generations.” That remains Scarlet’s overwhelming desire. Even though we would stand to gain financially if the proposed sale were to go through, we categorically oppose the actions of the trustee in entering negotiations to renege on that stated purpose’.
Regarding the label zoning error by Council staff, Tabatznik added, ‘It would be grossly irresponsible if this serious procedural error effectively gave the go-ahead for the proposed development’.
Exploiting loopholes
Ecologist David Milledge told The Echo, ‘The developers have made a point of avoiding independent expert scrutiny of the biodiversity issues associated with this DA’.
‘By failing to find a “significant effect” (under the Biodiversity Conservation Act) for any threatened species (and consequently not having to prepare a Biodiversity Development Assessment Report (BDAR)), they have avoided review by the relevant state government agency (Biodiversity Conservation Division of DP&E or the Biodiversity Conservation Trust), and hence the biodiversity component of the DA only goes to Council.
Avoiding costs
‘The developers are also avoiding the costs of having to offset impacts on biodiversity (under the Biodiversity Offsets Scheme) by not preparing a BDAR, which could be quite considerable given the number of threatened entities being impacted at Linnaeus.
‘The developers are simply exploiting the way the system is set up, by having their biodiversity consultants make a finding of “no significant effect”.’
‘As is often the case, the BDAR overrules the ecology and recommends deferred commencement. A travesty!’
During last week’s Council’s meeting, mayor Michael Lyon asked planning director Shannon Burt how a restricted education zoning became a eco-village proposal.
She replied in part that an issue arose after transferring ‘old zones into new standard zone’ definitions.
Despite that rezoning ‘label’ staff decision being an enormous advantage for the developer, and no further investigations or corrections being publicly tabled, Cr Lyon told the gallery, ‘It’s not our issue to solve’, and said he was satisified he understood the issue.
(See related story: Former mayor recuses himself from large eco-resort DA decision)
Former mayor, Simon Richardson, who was supportive of the developer’s plans while in office, has recused himself from making the decision as member of the The Northern Regional Planning Panel. See page 10.
Change of zone label
Meanwhile, local environmentalist and founder of LocalFutures, Helena Norberg-Hodge, told The Echo, ‘Linnaeus is one of the most inspirational and ecologically precious pieces of land on Australia’s eastern seaboard’.
‘So this is a uniquely important case, not just for the land itself but as a symbol of Byron’s hopes for the future. ‘What would it say about our collective vision if we allowed it to become a high-end tourist resort?
‘I’ for one’ am not prepared to shrug my shoulders and let that happen.
‘The change of zoning that made the application possible (from Education to Mixed Use) was done improperly, by Council staff, without proper community consultation, and should be declared invalid.
‘It would be a travesty of local democracy if that glaring procedural error gave the green light for developers to commercialise land that should be protected.’
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