Evans Heads locals and other concerned members of the public form the Northern Rivers have raised concerns over Richmond Valley Council’s (RVC) apparent lack of preparation to defend the controversial Iron Gates appeal currently underway in the Land and Environment Court (L&EC) in Sydney.
The development application (DA) was rejected by the Northern Regional Planning Panel (NRPP) in September 2022. An appeal was immediately launched by Gold Coast developer Graeme Ingles. Ingles has been trying to regain approval for residential development of the site since his approval was stripped by the L&EC in 1997 after illegal clearing and other works were done at the site. Remediation was required by the L&EC of approximately $2 million, however, this work has never been done by Ingles.
The current iteration of seeking a DA for residential development is now in its ninth year. The NRPP had roundly rejected the DA by Goldcoral Pty Ltd following a public hearing on the development and two independent professional assessments which recommended refusal. Grounds for rejection included serious fire, flood, ecological and Aboriginal cultural and town planning concerns.
Following his appeal application to the L&EC Ingles put the Iron Gates property up for sale by but the property was withdrawn from sale early in 2023. Goldcoral Pty Ltd was then put into administration and the appeal case in the L&EC was taken over by the large legal firm Corrs Chambers Westgarth from Ingles’ solicitor.
Public refused right to know basis of appeal
The matter proceeded to a Section 34 Hearing by a L&EC Commissioner held on site at the Iron Gates at Evans Head. Submissions against the appeal were presented by the public despite the fact that the basis for the appeal was not made public.
Public excluded from onsite meetings
The public was then excluded from further negotiation with the Commissioner, and the parties to the case, including a second respondent, the Bandjalang People, retired behind closed Iron Gates and closed Richmond Valley Council (RVC) chambers for further talks.
The community was not informed of the outcome of the discussions with the Commissioner by RVC’s solicitor who had overseen the public representations. Council’s solicitor declined to respond to questions about the case on the grounds that Council was its client, not the public. The public was led to believe at the time that the Section 34 Hearing had folded.
Following the Section 34 Hearing the case returned to the L&EC with further Hearings held with the Court Registrar. Evans Head Residents For Sustainable Development Inc requested that the public be permitted to audit proceedings in the L&EC. Recent Hearings have been available to the public through the internet or by telephone with the latest Hearing held yesterday Tuesday, 18 July commencing at 10.30am and finishing at 4pm with various adjournments during the course of the day for the parties to amend and redact documents to make them compatible with Court requirements for a Class 1 appeals case.
‘Class 1 [proceedings] involve merits review of administrative decisions of local or State government under various planning or environmental laws’. ‘The court… sits in the place of the original decision-maker and re-exercises the administrative decision-making functions. The decision of the court is final and binding and becomes that of the original decision-maker’. In this case RVC is defending the case rather than the NRPP which made the refusal decision. Class 1 appeals are usually heard by a commissioner of the court.
The L&EC is currently considering if the DA can be amended for approval or if the changes to the DA are substantive compared to the one rejected by the NRPP on 7 September, 2023 and will require a new DA process.
Revised reports not available to public and RVC substantially redacted
None of the new plans or revised expert reports presented by the appellant (Goldcoral Pty Ltd) and considered by the Court are publicly available. Those auditing the case (15 parties at one point during the day) were forced to infer what had been claimed. However, before elements of the revised plan were considered, Goldcoral’s legal representative objected to substantial slabs of Richmond Valley Council’s affidavit which apparently challenged the substance of the revised application. By agreement of the parties substantial sections of RVC’s affidavit were redacted and pages of material withdrawn from the Court’s consideration.
Criticisms of council’s affidavit included failure of those providing evidence to include their qualifications, failure to provide evidence supporting certain claims, failure to prepare the document according to standard legal procedure which included numbering of paragraphs making it easier for the Court to manage the voluminous material involved, failure to restrict comparison materials to the current application rejected by the NRPP, and introduction of material not relevant to the case.
Insufficient review time for RVC
Counsel representing Council complained to the Registrar about the fact that it had only just received material pertinent to the case from the Appellant and had insufficient time to review it. And Counsel representing Goldcoral complained that the material it was presenting to the Court needed substantial work to accommodate the significant changes to documentation necessitated by the heavily redacted RVC affidavit, changes accepted by the Registrar and parties to the case.
Despite the complaints the parties worked to adapt to the revised circumstances and most of the afternoon’s hearing was given to presentation by the legal representative from Goldcoral about the revisions to the plan for residential development. In essence the case was put that the material was for a revised development which took account of many of the criticisms put to the NRPP which led to the DA’s refusal.
Proposed changes included, among many matters, the extent of the development footprint, reduction in total area of the development, changes to size and diversity of blocks, changes to the internal roads including a new fire trail around the site, a new refuge area for fire and flood for residents cut off during such events, increased setbacks from littoral conservation areas, new consultation processes with Aboriginal stakeholders yet to be completed, changes to earthworks with reductions in mass and impact, changes to vegetation clearance and changes to stormwater management. The hearing with the Registrar is set to continue next Tuesday. Those interested in following the case can obtain details from the Land and Environment Court site.
A spokesperson from Evans Head Residents for Sustainable Development (EHRFSD) said today following the Hearing that it was disappointing to witness the wholesale, and what appeared to be, valid criticism of the case material prepared by the staff of Richmond Valley Council in their affidavit to the Court. The problem was made worse by the fact that the material was not made available to the public and Council’s General Manager had written a generic letter to those asking for more information about the case that it would not be doing so:
Significant cost to ratepayers
The spokesperson for EHRFSD said that the case had already costed ratepayers a seven figure amount and more costs were on the way. He also added that given that the community had provided so much valid criticism about the former DA that it was decidedly wrong to exclude the community from the information attached to the case.
‘The community is not asking for a “running commentary” on legal proceedings,’ he said. ‘We have never done so. What we are asking for is the basic information such as new reports and affidavits and plans on which the case for an amended DA is based so that we can assess for ourselves the veracity of materials being presented, follow court proceedings and draw our own conclusions. The community is not stupid and has much to offer and it is becoming patently clear through what appears to be a dismal performance by council in material preparation, that community input may be essential to the case as it has been in the past for success.
‘There is no doubt that the case is a complex one but this is not a ground for refusing to provide basic information to an interested public, particularly one that has already gone through four versions of the DA and made substantial submissions.
‘As it currently stands the question before the Court, as we understand it is, “are the changes to the application so significant that it should be a new DA process, or should it be approved by the L&EC without further consideration by the public, as an amended application?”
‘It is our view that even in the absence of detailed information the amendment application looks like a very different application to the one we have seen and should be treated accordingly as a new DA,’ he told The Echo.
‘But there is a bigger question here which council has refused, and continues to refuse, to deal with and that is, “is the Iron Gates a suitable area for residential development or should it be rezoned in keeping with it natural and cultural attributes for environmental protection?”
‘This is a question that the community has been asking for a review of for decades. It is important to remember that this land was zoned for residential development in the early 1980’s, forty years ago when the “white shoe” brigade was in ascendance.
‘It is vital to ask the question “is residential zoning appropriate here today given the future impacts of climate change and our better understanding of the environment, protection of the public interest, and keeping the public out of harm’s way? There is recent precedent for doing so in the Clarence Valley,’ he explained.