Update: Chief Judge, Justice B Preston has approved the Iron Gates development this morning. The judgment is being handed down with conditions.
Original story:
The Appeal by the developer Goldcoral Pty Ltd (in Administration) against the decision of the Northern Regional Planning Panel (NRPP) to refuse a large residential development at the controversial Iron Gates at Evans Head came to end on Friday 14 June with Chief Judge, Justice B Preston, Reserving his decision.
Change of basis of DA
During the course of the two-week Hearing, the legal status of the proposed development changed from Torrens Title to Community Title. Put simply, Community Title purchasers own their own properties as in Torrens Title but also have additional financial and management responsibility for shared areas such as parks, and in the case of the Iron Gates, a proposed Shelter-in-Place (SIP) building and related infrastructure.
Shelter-in-Place
The SIP building was initially proposed by the chair of the NRPP, Paul Mitchell, in gratuitous advice offered to the developer about how the development might be gotten over the ‘approval line’ to deal with the site’s perennial flood problem. The developer subsequently took up the advice and expanded it to deal with bushfire emergencies to which the property is also prone.
The state government promised in early 2023 there would be ‘clear and consistent guidance for the community, councils and consent authorities about when shelter-in-place can be used as an alternative to evacuation off-site/out of the floodplain‘, but at time of the L&EC Appeal no such guidance was available. And there was no evidence that the same shelter could serve both flood and bushfire emergencies.
Significant onus on future owners for costs
With Community Title land property owners are usually required to pay for upkeep of shared facilities such as the proposed SIP building placing an additional burden on land owners who purchase land under the Title. It is like a Strata Title arrangement where there are ongoing costs beyond normal council rates and charges.
Richmond Valley Council Director Angela Jones made clear in her testimony and cross examination that Council would be passing responsibility for common assets such as bioswales and gross pollutant traps to deal with stormwater to the Community Title land owners as Council was already struggling to deal with infrastructure assets it was responsible for. ‘We can’t maintain what we have,’ she said.
Director Jones and Counsel for Council seemed unable to answer questions about why Community Title property should be treated differently from Torrens Title for basic infrastructure costs and no one canvassed the issue of the precedent which would be set if Community Title assets were subsidised by council.
Counsel for Goldcoral Pty Ltd put it to Director Jones that Richmond Valley Council (RVC) had responsibility under the NSW local government act 1993 for certain infrastructure such as drainage reserves (S.49) and that Council had the legislative obligation and capacity to raise funds through various mechanisms, such as rates, to manage them.
Future ‘special rates’ for infrastructure for ratepayers?
There was no discussion about the additional burden such infrastructure costs would place on RVC ratepayers should an ‘Iron Gates rate’ be imposed. Such a rate would come on top of the ‘special rate’ ratepayers have been paying for years as a result of the state government’s dramatic reduction of Federal Assistance Grants, part of cost-shifting by the state government to ratepayers.
At Evans Head the rate burden is already such that the per capita share of rates paid to Council from this small community far exceeds the population size, a ‘fairness’ issue RVC continues to ignore despite repeated objection and despite Council’s status as one of the more significantly disadvantaged and poorer local government areas in NSW (see the SEIFA Indexes).
A spokesperson for Evans Head Residents for Sustainable Development said today that ‘it was obvious that Council had not thought through what additional financial demands would be placed on ratepayers should the Iron Gates proceed either as a Torrens or Community Title, and that was on top of the huge bill the Iron Gates had already cost.’
There has been no analysis of costs to Council, and ultimately ratepayers, and that includes the massive subsidisation of sewerage infrastructure for the site raised at an earlier meeting of Council.
We also don’t know what deals have been done behind closed doors which would be covered up with the usual ‘commercial-in-confidence’ excuse widely used in government to hide deals which disadvantage ratepayers.
We have yet to see a council business plan for the real cost of the Iron Gates development to ratepayers. For all we know we could be subsidising the profits of the developer?
What is truly remarkable is that Council has had nearly ten years to look at the financial implications for ratepayers but has failed to do so. Surely this is a public interest matter under the Environment Protection & Assessment Act which deserved Council’s and the LEC’s full attention?
To be continued…
♦ Dr Richard Gates, Member of the Executive, Evans Head Residents for Sustainable Development Inc.
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