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Byron Shire
July 20, 2024

Iron Gates L&EC appeal hearing comes to an end:  decision reserved – Part I

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Evan River. Iron Gates property on left. Photo supplied

The long-standing, controversial Iron Gates case came to an end in the Land & Environment Court (L&EC) last Friday after a two-week Hearing commencing at Evans Head on 3 June and finishing in the Court in Sydney on 14 June.

On the first day of the trial, five members of the community gave evidence to the Chief Judge, Justice B Preston, against the development to the Court at the entrance to the Iron Gates property. Their submissions were subsequently admitted into evidence by the Court and included in the nine-volume bundle of community submissions, most against development.

Those giving evidence were refused the opportunity to be part of the onsite inspection of the property led by the Chief Judge, an inspection which took most of the rest of the day and led to the afternoon session in the Ballina Court being cancelled and carried over to the next day.

Chief Judge Preston, who presided over the Appeal from Goldcoral Pty Ltd (in administration), ‘Reserved’ his decision last Friday to a date to be announced but is unlikely to be this month because of dates he set toward the end of the month for additional reporting from the parties to the case, and because of the complexity of the case itself which has a forty-year history.

Protest at the time Iron Gates Drive was being bulldozed through Crown Land circa 1991, 30 years ago. Photo supplied

The land was zoned for residential development in 1983. A 1988 Richmond River Shire Council (predecessor council until forced amalgamation in 2000) document shows that Council was anticipating 3,000 residents for the bushfire and flood prone isolated site, more than a kilometre from Evans Head.

As pointed out by the barrister for Goldcoral Pty Ltd, the area devoted to residential development has diminished over time culminating in the substantially-amended 122 lot Community Title development before the L&EC for decision.

In 2008 Richmond Valley Council (RVC) and the developer agreed behind closed doors to a much-reduced area to be given to residential development. ‘The Agreement’, under the badge of the Supreme Court of Queensland showed how the land was to be carved up for residential development and conservation. The carve-up looks remarkably like the current development before the Court. The Agreement followed a Supreme Court multi-million dollar law suit brought by the development company Iron Gates Pty Ltd (in liquidation) and Graeme Ingles (developer) against RVC and ten other parties following defeat of a prior application for development of the site in the 1990’s and L&EC Orders in 1997 for remediation of the site. The Court Orders were never carried out by the developer despite threat of fines and jail.

Sign opposing development at Iron Gates posted at bridge at beginning of Iron Gates Drive. Photo supplied

A spokesperson for Evans Head Residents for Sustainable Development Inc. (EHRSDI) said today that the Queensland Supreme Court law suit seemed to end with the signing of the developer-council Agreement. What we don’t know is what else, if anything, was agreed in the carve-up which may have been the motivating factor for a new application for the site being introduced in November 2014 by the developer Graeme Ingles at the invitation of the then general manager of council John Walker, according to developer Ingles.

During the two-week L&EC trial the nature of the development application has changed legally from Torrens Title to Community Title to accommodate a proposed problematic ‘Shelter-in-Place” (SIP) for future residents to go to in the event of flood and fire.

According to EHRSDI investigation there is no established policy on NSW Shelter in Place despite the matter being with the government for more than a year.  As it presently stands, SIP is viewed as an alternative when evacuation is compromised but developers see this as a way of removing prohibition on problem areas for development such as the zombie development at the Iron Gates which is high risk for flood and fire made worse by the challenge of climate change.

On the last day of the L&EC Hearing Richmond Valley Council Director Angela Jones was called to give evidence about the demands the proposed development would place on council’s resources. Under cross-examination she stated that Council ‘can’t maintain what we have’ and that was why responsibility for looking after many aspects of the development would fall to those who had taken up residence at the site under Community Title. Those responsibilities included maintenance of Asset Protection Zones for fire control and bioswales for stormwater including gross pollutant traps for which council has no equipment or experience.

Jones came under heavy questioning from both the Appellant and the Chief Judge as to why a change of land title would make any difference to Council’s responsibilities with regard to the residential development and admitted it was about council’s financial capacity which drew questions about council having known for a long time about the proposed residential development.

Council’s barrister made the point that the nature of the land title had only ‘crystallised’ during the trial and that council under Community Title would be responsible for assets not dedicated to it.

The Appellant’s barrister made the argument that council was being ‘opportunistic’ to get out of paying and that passing on responsibility for maintenance to a ‘bunch of amateurs [residents living there] who would not have a clue about what to do… [and ironically] you couldn’t ask for a better solution!’

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