On Monday, 18 September 2023 the Land & Environment Court (L&EC) rejected an application to amend a development application for a satellite residential development at the controversial Iron Gates site at Evans Head.
The application from Goldcoral Pty Ltd (in receivership and administration) was opposed by Richmond Valley Council and Ms Simone Barker from the Bandjalang community at Evans Head. The Court refused the amendment on the grounds that it effectively constituted a new DA (see judgement at Goldcoral Pty Ltd v Richmond Valley Council [2023] NSWLEC 1540).
The Court ordered that:
‘(1) The application for leave to amend the development application is refused; and
(2) The Notice of Motion is dismissed.’
Previously refused by NRPP
The L&EC Court Case followed the refusal of the Northern Regional Planning Panel (NRPP) to approve a development application (DA) from Goldcoral Pty Ltd at 240 Iron Gates Road Evans Head on 7 September 2022 for a large and controversial concept residential development.
The site has been subject to DAs for over 30 years and the community has fought since that time against the inappropriate development of the flood- and fire-prone site.
The current DA was lodged on 27 October 2014 and four amendments followed prior to the NRPP hearing. The developer, Mr Graeme Ingles from the Gold Coast, subsequently lodged an application against the refusal decision on 19 September 2022, less than two weeks after the NRPP decision.
Refusal recommended
The NRPP refusal followed significant public submissions against the proposal and two independent expert assessments, one from Richmond Valley Council and the other from the Department of Planning and Environment. Both independent assessments recommended against approval of the development.
Following his application to the L&EC developer Ingles put the Iron Gates land on the market for sale but it was withdrawn from the market in early 2023.
On 1 February 2023 Goldcoral Pty Ltd was put into receivership and a manager was appointed. Legal matters were taken over by Corrs, Chambers Westgarth who proceeded with the application for an amended DA through the L&EC.
Community refused access to conciliation meeting
Initially, a Section 34 conciliation meeting was organized by the L&EC on 6 March 2023 in an attempt to resolve the matter. The community gave evidence preliminary to the meeting but was subsequently refused attendance at the conciliation meeting. The Section 34 was unsuccessful.
New DA required?
Three hearings were held subsequently by Registrar S Froh in the L&EC in Sydney. Live viewing was made available for the public via video link because of widespread community interest in the Iron Gates case and the distance of interested parties from the Court.
In her decision Registrar Froh noted that the DA ‘…had a long history’ and that while the parties to the case appeared to agree that the ‘proposed amendment remains a subdivision’, the question before the court was whether the changes made in amendments to the DA ‘…constitute[d] a development for which a fresh application was required’.
Registrar Froh cited case law where the courts had previously agreed to allow certain kinds of changes but noted that none in the Iron Gates case were ‘determinative’. The Registrar said that she was required ‘to consider the cumulative effect of the whole of the proposed amendment’ and had concluded that the amendments had ‘pushed past’ a ‘tipping point’ as they were ‘more than minor’. ‘Accordingly, I am satisfied that the proposed amendments are, as a matter of fact, so different as to constitute a new development application’. ‘The consequence is that I must refuse the application’.
The refusal by the L&EC of leave to amend the DA means that the original DA refused by the NRPP will now go before the L&EC for review in October.
Time to re-zone?
A spokesperson for Evans Head Residents for Sustainable Development said today that ‘the carefully considered decision of the Registrar was a welcome relief. It was a well-argued judgement based in case law which would make it more difficult for the applicant to be successful in their appeal against rejection of the original DA in the L&EC in October’.
‘The original DA was overwhelmingly rejected by the NRPP, the independent consultants and the community in 2022 and here we are again more than a year later with the weight of evidence clearly still against the proposal. It will be interesting to see if the applicant proceeds with the case in the L&EC or withdraws and submits a new DA or takes some other action. The current DA has been running for nearly nine years with October the ninth anniversary.
‘I guess we will have to wait and see what Goldcoral Pty Ltd (receiver and manager appointed) does but it is long overdue for the land to be appropriately rezoned in keeping with its environmental and cultural significance, and for it to be removed from the list of residential lands for development in the Richmond Valley Council area. The land was zoned forty years ago and times have changed with new pressures from climate changes with flood and fire a perennial problem for the site.
‘Nearby land in the same flood plain has been taken off the list of lands for future residential development by Council. This land should follow suit with appropriate compensation for the developer less the costs of land rehabilitation from damage created by earlier activities of the developer which are the subject of L&EC Court Orders from 1997. These Court Orders need to be executed.’
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