Councillor Alison Worthington has given notice that at the Ordinary Meeting of Council on Tuesday 8 March 2022, she will move a motion that Council writes to the Minister for Planning, advocating for a comprehensive review of provisions within the Environmental Planning and Assessment Act relating to the lapsing of development consents and specifically the community’s concerns regarding subdivision approval commonly referred to as “zombie developments”. If the Minister is swayed into believing that provisions within the Environmental Planning and Assessment Act should be reviewed then such a review would require consultation with the entire community of NSW given that it would be a revision of the Environmental Planning and Assessment Act. Councillor Alison Worthington, in her report to Council says "There has recently been discussion within our community, and within other communities across NSW, concerning old development approvals whose consent conditions remain active for decades despite a lack of significant commencement or completion of the development. "The consent continues to be lawful under the Environmental Planning and Assessment Act (EPA Act), enabling the development to proceed despite the approval being decades old. These developments have been referred to as “zombie developments”. "A recent local example of this is the consent for a subdivision at Anderson Avenue in Tuross Head, also referred to as the Coila Lake development. "This subdivision was approved in 1984 and because engineering construction work had been physically undertaken, in accordance with EPA Act the consent had not lapsed. The lapsing of development consent is considered under section 4.53 of the EPA Act. "I have included the relevant part of the section below for information: (4) Development consent for— a. the erection of a building, or b. the subdivision of land, or c. the carrying out of a work, does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section. "The never ending life of these “zombie” consents creates concern within the community as the development is able to proceed without consideration of contemporary planning and environmental legislation, nor consideration of some community views, all of which may have changed significantly in the years or decades that have passed since the original approval was granted. "To make matters more concerning and confusing for the public, there is potential for such developments to be modified, and in accordance with current legislation, to do so without reassessment of environmental issues. "The planning legislation and system is complex, making it difficult for our community to understand and rationalise what often occurs, even when it is in accordance with the law. "Council must determine development applications and deal with planning matters in accordance with the law, even where there is strong community concern or opposition. It is clear that the current legal arrangements are creating significant concerns within the community. "In this case, the community expectation is that the planning law requires amendment so that we can trust that the best of contemporary planning and environmental legislation is applied to ALL development activity. "There are many arguments both for and against continuing to recognise development consents long after they are issued, and many legitimate reasons as to why a development may not proceed in a timely manner. "Notwithstanding this, concern is being raised in our community about this issue, especially in the context of residential subdivisions that are many decades old. The power to amend the planning law to limit the lifetime of these old development consents rests with the NSW Government. "Given the above and noting that the issues are not confined to just the Eurobodalla, I believe that the NSW Government needs to undertake a comprehensive review of the lapsing of development consents and associated issues, to examine potential changes to the EPA Act and to do so in consultation with the community and other stakeholders." The above motion and report was drafted in time to be accepted into Council's Agenda that was published on March 2nd, 2022. The following is a communication by the General Manager, dated March 3rd, 2022 where they state (in part): The more pertinent matters that have been considered in this assessment relate to whether the proposed modification is proposing any additional impact over and above what was originally approved. Council is also obligated to ensure that the development is substantially the same as the original proposal. The NSW legislative framework provides for the site to be treated as if it is cleared and based on the existing 1984 approval, land clearing could occur now without further assessment by Council. Council has worked with the developers to try and achieve a better environmental outcome. The submitted plans show that the northern and eastern edge of the proposed footprint, closest to the Endangered Ecological Community, is the same as the original approval. The original approval allowed a road to full Council infrastructure standard through the area which links each side of the development. The applicant contends that the Biodiversity Conservation (Savings and Transitional)
Regulation 2017 provides exemptions for existing planning approvals and the need to prepare a Biodiversity Development Assessment Report (BDAR) on the basis that the impact on biodiversity values is not increased. This is on the basis, the site was approved to be a residential subdivision in December 1984 and therefore is already considered cleared for the purpose of the Biodiversity Conservation Act.
The legislation sets out a framework to assess these matters. If Council is the opinion that
there is no increased impact on biodiversity values from what was originally approved, then no further assessment is required. The clearing of the site is considered to be approved in its entirety under the original consent and as such no further assessments on the areas
considered approved, have been requested at this time.
Council has referred the application to both the Batemans Marine Park Authority and the
Natural Resource Access Regulator (NRAR) for their comment. Both have responded with
general terms of approval.
Council was asked recently during a Public Access session:
"How can it be argued that this is ‘substantially the same development’ when it includes a road extension – Monash Avenue, cutting through the development and over the waterways, 20 per cent more dwelling packed into the same sized land and many new homes on Chauvel Crescent?"
Council's response on March 3rd 2022 was:
"The EP&A sets out what can be considered under a Section 4.55 modification. There are a number of recent Land and Environment Court rulings on this subject. Council needs to compare the modification to the original development and what the potential impacts of the proposed modifications are.
Council is satisfied that while there is a minor change to the internal elements of the subdivision, the modified proposal in a qualitative and quantitative sense, will remain substantially the same as the originally approved development consent. This decision aligns with recent Land and Environment Court decisions."
Of interest in the response that the General Manager gave to the member of the public who raised questions during Public Access was the following reply to the question:
Question : The modification follows the 2020 bushfires which destroyed 80 percent of Eurobodalla LGA bushland. Allowing this modification and development will further reduce habitat for endangered native flora and fauna in Eurobodalla LGA, and represents a potential material impact for the environment. How does Council and the developer propose to manage the wildlife displaced by this development in the wake of the bushfires?
The General Manager responds:
"As mentioned above the original consent allows for the current site to be cleared. Any clearing should be done in accordance with best practice guidelines, and it is proposed that an advisory note is placed on the modified consent to reinforce this."
In an attached letter, provided by the General Manager, from the Manager of the Batemans Marine Park it states (in part)
So what of the community challenge to the "Zombie development"?
The General Manager says in her response :
"I would like to confirm that modification of Development Consent MDA0124/20 was approved, subject to conditions of consent, under staff delegation on 2 March 2022. A letter is currently being finalised to all those who made submissions addressing concerns raised during the exhibition period and advising of the approval."
The new elected Councillors might like to reflect on the fact that the approval of this "Zombie development" was done during their term as Councillors, under staff delegation, and that that delegation was given to them by the previous Council, and that the approval was given because it ticked all the boxes of the current planning legislation.
While there may be other Zombie development applications out there it is clear that the approval of this one will not be overturned by any review requested of the Minister.
