Both the Tweed District Residents Association (TDRA) and Kingscliff Ratepayers and Progress Association (KRPA) have recently called for a moratorium on existing legacy or zombie development approvals (DAs) on floodplains. The state government continues to say that councils have the ability to deal with these problematic DAs, but the evidence seems to say otherwise.
The failure of current legislation to stop legacy DAs is of particular concern to the TDRA which has been seeking stop work orders on the recent activity by MAAS Group Holdings at Tweed on Cobaki Creek. MAAS bought the property, with a 27-year-old legacy development approval on it, last year for $20M+ and have started clearing the sensitive site. The Tweed Council have asked MAAS to ‘cease work’, but MAAS have declined leaving both Council and locals frustrated with their inability to stop the work and have the site reassessed in relation to flood and environmental impacts of the DA.
NSW Premier
Responding to The Echo NSW Premier Chris Minns, who spoke to community representatives on the issue of legacy developments in the lead-up to the NSW election said, ‘My office will be working closely with the planning minister as the government works on new rules to stop new developments on dangerous floodplains – having been on the ground in the region over the past couple of years, I know how important it is to get this addressed.’
The Department of Planning and Environment (DPE) told The Echo that, ‘The government is committed to drafting new rules and streamlining planning processes to stop new developments on dangerous floodplains’ yet they have thrown responsibility back to councils saying they already have the legal power to look at legacy developments.
‘Councils already have legal power under the Environmental Planning and Assessment Act to take action against existing zombie developments, and DPE tightened planning rules in 2020 to clamp down on new ones,’ a DPE spokesperson said.
‘Councils also have powers to investigate and take enforcement action if they are concerned whether physical commencement has occurred, or if any part of the development does not comply with the relevant consent.
‘DPE strengthened requirements for councils to consider flooding when rezoning land and issuing development approvals in 2021.’
Action needed now
Peter Newton from KRPA responded to the DPE’s statement saying ‘it’s disappointing that the department has thrown this on Council’s shoulders given that it is obvious the legislation is not strong enough for Council to actually prevent legacy developments from proceeding, such as Cobaki, where the Council “cease” orders have been disregarded. The legislation is not working and needs the state government to step in and commit to reform.’
Tweed Council’s General Manager, Troy Green also highlighted the current failures in Council’s powers to take action on these types of DAs.
‘There has been no change in Council or state policy concerning floodplain development post the 2022 floods. The NSW State Government Flood Inquiry made various recommendations concerning floodplain development from which there have been no subsequent directions from the government,’ Mr Green told The Echo.
‘The Act requires Council as a consent authority to consider current planning legislation and policy, in terms of the merits of any current DA.
‘Council currently does have the statutory power to take compliance action against any reported breach of conditions of older development consents, and such action is guided by Council’s adopted compliance policy and state legislation.
‘Whilst the department has advised that councils have legal power under the Environmental Planning and Assessment Act to revoke or modify development consents that are out of step with the provisions of any proposed local planning controls, they have failed to also advise that this power can only be exercised with the various provisions as prescribed under s4.57 of the EP&A Act 1979 No 203.
‘That is, it must have regard to the provisions of any proposed LEP, must be done by instrument in writing, and before revoking or modifying the consent, Council must in writing inform each person who will be adversely affected by the revocation or modification of the consent of the intention to revoke or modify the consent. Those persons then have the opportunity to show cause why the revocation or modification should not be affected. If the development consent is revoked or modified, the aggrieved is entitled to recover from Council (if Council is responsible for the issue of the instrument) compensation for expenditure.’
Lindy Smith, President of TDRA pointed out the failure of current legislation to help councils stop legacy DAs telling The Echo that, ‘The big issue is zombie developments, and I have been unable to find anything to assist the situation. The changes to the regulations 2020/2021 do nothing for the vast majority of legacy development approvals which have come to life on the east coast post-covid, and to “back zone” is near impossible.
‘The recent court ruling in March on the South West Rocks zombie development failed for the council who tried to stop it proceeding. To add, the Cobaki Creek fiasco has exposed developers [attitude to] communities and the environment,’ she said.
‘The question is, with the knowledge we now have today on flood and fire risks, where will the liability lie when they fail to meet 2023 standards and duty of care responsibilities?
‘Also, with the Cobaki Creek development, it was approved when the airport was a small regional airport, now putting the development within a public safety exclusion area – hence, we need an urgent specific update to the regulation to properly manage the zombie developments.’
The DPE has clarified that they are ‘working alongside the NSW Reconstruction Authority on a range of programs, policy changes and guidance to proactively plan and mitigate against the impacts of floods in line with the Independent 2022 Flood Inquiry recommendations.’
Responding, Mr Newton said that ‘we are heartened by the stated commitment for policy and program changes in line with flood inquiry recommendations, however to what extent and what timeline and priority has been given, again the community deserves and expects action.’
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