Can Council’s overturn their decisions?

NSW Labor planning minister, Paul Scully, when asked about the Wallum estate by local MP Tamara Smith (Greens)  in parliament on March 20, said, ‘the planning Act allows councils to overturn decisions, because they have generally made them in the past. To the best of my knowledge, no council has acted upon’.

The Echo asked his office ‘Is Mr Scully suggesting that council can overturn the Wallum? It was canvased in Council extensively and staff advice was that they couldn’t’.

His office replied, ‘This is a local planning matter that was decided by the Northern Regional Planning Panel on 16 May 2023’.

‘A council can revoke or modify a development consent that has already been granted if they consider the development should not be carried out or completed. To use this power, a council must: Prepare a proposed LEP that changes its planning controls; ‘Consider whether the provisions of the proposed LEP mean that the development should not be carried out or completed or should not be carried out or completed without modifications; and Follow an administrative process to revoke or modify the consent, including that the council must consult with anyone adversely affected by the decision and give them an opportunity to respond’.

‘At the request of the Minister for Planning & Public Spaces, the NSW Parliament’s Legislative Assembly Environment and Planning Committee has started a public inquiry into historical development consents.

Further information on the existing legislative authority of a council can be found, here: https://classic.austlii.edu.au/au/legis/nsw/consol_act/epaaa1979389/s4.57.html

‘The Department of Climate Change, Energy, the Environment and Water is aware of this project and has been in discussions with the proponent on its obligations under the Federal legislation’.

Demands for a reply

Mayor Michael Lyon’s personal assistant contacted The Echo requesting that he be given a reply. It is as follows:

‘Five minutes of research (I know, work) on this would have brought you this information HL:’

‘A council or the Planning Secretary can revoke or modify a consent which is in force if of the view that the development should not be carried out or completed, having regard to the provisions of any proposed local environmental plan or State environmental planning policy (s4.57 of the EPA Act).

‘This can only be done after consultation with persons who would be affected by the revocation or modification, and compensation is payable. It is not a power that is often used for that reason. Importantly, however, in the absence of a proposed planning instrument, the power cannot be used.

‘There are two things with respect to this to note. The first is that there has to be a ‘proposed’ LEP amendment or state planning policy to refer to in order to justify the revocation. The second is that you’d have to pay compensation, which puts you back in the same position as buying the site, even if you could find something to rely on.

‘The effort by the planning minister here is poor form in the extreme and serves no useful purpose’, he said.

And during the final minutes of a nine and half hour Council meeting last Thursday, Cr Lyon said Scully’s comments were as useful as ‘tits on a bull’.

The transcript from March 20 reads as follows:

Ms TAMARA SMITH (Ballina) (11:36): My question is directed to the Minister for Planning and Public Spaces. As the person uniquely positioned with the power to refer the development known as Wallum in Brunswick Heads to the Federal environment Minister, will the Minister exercise that power so that the Federal environment Minister can consider the impacts of the development on matters of environmental significance as the law intends?

Mr PAUL SCULLY (Wollongong—Minister for Planning and Public Spaces) (11:36): I thank the member for Ballina for her question. Wallum Estate is the subject of an approved development consent for a subdivision of 131 lots at 15 Torakina Road, Brunswick Heads, which is within the Byron Shire Council area, as the member would be aware. The application was approved in May 2023 by the Northern Regional Planning Panel, which relied on an assessment undertaken by Byron Shire Council. I am advised that the panel was satisfied that it met the requirements under the New South Wales Biodiversity Conservation Act. I also understand that both the council, as part of its assessment report, and the Northern Regional Planning Panel considered biodiversity impacts, including submitted conservation management plans and the Department of Planning, Housing and Infrastructure’s section 34A certification. Further, I am advised that the panel and Byron Shire Council met all requirements under the New South Wales biodiversity conservation legislation.

Following the approval, the community and Sue Higginson, who is a member in the other place, raised concerns with the redevelopment and compliance with the Commonwealth’s Environment Protection and Biodiversity Conservation Act. As the member would be aware, an approval under the New South Wales Biodiversity Conservation Act does not replace the Commonwealth Act requirements. In fact, the Commonwealth Act places an onus on the proponent landowner to seek separate Commonwealth approval for a controlled activity under that Act. The Commonwealth Act is administered by the Commonwealth and there is no responsibility on New South Wales to refer an application under that Act or to ensure compliance. In regard to the policy of referring regionally significant development applications to the Federal environment Minister under the Commonwealth Act, the onus is on the applicant to refer a proposal that will, or is likely to, have a significant impact on a matter of national environmental significance for approval.

I am aware and can inform the member that the Commonwealth Department of Climate Change, Energy, the Environment and Water has been in discussions with the proponent and that the compliance unit of the Commonwealth department is also aware of those activities. My department has also been advised that the Commonwealth was aware of the Wallum Estate development and was in discussions with the proponent in the requirements and their responsibilities under the Commonwealth Act. This matter is now with the Commonwealth, which can complete its own assessment as to whether a controlled action has been carried out and, if it was triggered, undertake compliance action where there is an identified breach. With that in mind, I have asked my department to engage regularly with the Commonwealth on this matter. [Extension of time]

I understand that this issue has a long history in the community, since a concept approval was granted and grandfathered, I think, around 2013. In that vein, I will update the House on another matter, because the issue of zombie development applications or zombie planning approvals is seen around many of our electorates. Historical development consents that were approved many years ago have not physically commenced or substantially progressed or completed. The planning Act says that a consent will lapse after five years unless building, engineering and construction work has physically started. Such development consents, which have been lingering for decades in some instances, remain lawfully valid if they have physically commenced before that lapsing date.

I am pleased that the Legislative Assembly’s Committee on Environment and Planning has started work, on my request, on this issue. I acknowledge the work of the member for Cessnock. I heard him on ABC Illawarra this morning, talking about this issue. It is a challenging inquiry into these historical consents, and that inquiry will examine the challenges of the planning system and make recommendations to address the problem.

As I have said consistently before, the planning Act allows councils to overturn decisions, because they have generally made them in the past. To the best of my knowledge, no council has acted upon that, but that option remains available. Councils can deal with it, and they should be looking to do that. I acknowledge that the zombie development applications are a challenge. The committee is looking at it. The former Government, including the member of the walking dead, the member for Wahroonga, had 12 years to resolve this issue, but they left it alone.