Protestors outside Councils Offices just before it decided to not appeal the decision of the Land Environment Court to approve the Iron Gates development. Photo supplied
There are many lessons to be learned from the Iron Gates residential development case, some of which have already been canvassed in evidence given to the NSW Upper House Portfolio Committee No. 7 – Planning and Environment and published in its recently-released Report (see Report No. 24 Planning System and the impacts of climate change on the environment and communities).
So what have we learned?
Money Matters
The introduction to the report makes the point that ‘The planning system… is a system that sees real power imbalances where some stand to make enormous financial gain and others stand to lose everything about the places they know and love…’ It also makes the point that while community voices are ‘…powerful…[they] are not provided the weight they require to advocate in the public interest over certain private interests and better outcomes are missed’.
The power imbalance seen in the Iron Gates case at Evans Head, where the developer spent millions progressing the case, are obvious. We learned that If you throw enough money at an appeal in the Land and Environment Court (L&EC) you have a good chance of being successful, particularly if the other side, in this case Richmond Valley Council (RVC), has limited resources to prepare and defend and appeal the matter as is the case for many small regional councils. Small councils are no match for big developers. Money helps you win.
Richmond Valley Council had to hire a consultant to prepare an independent assessment of the Goldcoral Pty Ltd DA (in administration) case which went before the Northern Regional Planning Panel (NRPP) in August 2024.
Notwithstanding recommendations from Council’s reviewer and another independent assessor for NSW State Planning that the development application (DA) be refused on numerous grounds, the NRPP refused the application BUT then proceeded to provide advice to the developer about what was needed to get the development over the line. The advice also included a novel, untested Shelter-in-Place (SIP) mechanism to deal with flood and fire risk, major problems for the site, about which the community had no chance to respond. Shortly after that advice the developer appealed the case to the L&EC and 22 months and millions later, the refusal was overturned and a newly-minted DA approved by the Chief Judge of the L&EC.
Cost millions
The developer spent millions of dollars in the appeal process not only on legal representation but also on consultants to deal with various contentious issues which were resolved out of the public view by the Chief Judge. Council failed to respond to the pivotal and problematic SIP solution from the developer and it was obvious it did not have the ‘appropriate skills’ or the resources to hire appropriate expertise to challenge what was being proposed. And it certainly ignored community input which flagged what was needed.
Cost of community action prohibitive
There was no way that the community could afford to join in the appeal process as most of us don’t have that kind of money and have witnessed the cost to individuals who take up the challenge. The community depended on RVC to look after its interests, ultimately a big mistake. In hindsight, the community should have attempted to raise funds to join the case particularly given council’s failure to take the community into its confidence and draw on its substantial knowledge and capacity.
RVC failure
To put it bluntly council did not appear to perform well in the appeal process and certainly let the community down in failing to challenge the decision of the L&EC mostly based on arguments about costs to ratepayers and chances of success.
Council relied on one legal opinion in reaching that conclusion and failed to engage other expert advice about a challenge process.
Faith in council was made worse by its refusal to not only not make available to the public a copy of the transcript of the case, but told us to purchase our own copy raising serious questions about its intent!
On top of that was council’s failure to provide full disclosure about what it had agreed to in the Queensland Supreme Court cases brought by Iron Gates Pty Ltd (in liquidation) and the developer Graeme Ingles against Council which might well have conditioned Council actions in any appeal.
All of these processes require money and it would seem the developer had the necessary resources but council didn’t, or said it wasn’t prepared to spend any more ratepayer money, and so the ‘intention to appeal’ application from council lapsed and we’re now stuck with a development which will affect ratepayer in many ways for years to come.
Having won the case the developer now has the Iron Gates land with an approved DA on the market. Why? Surely it is not a matter of money and private interests?!
To be continued…
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