Flood plain DA refusal “historic” and “monumental”

By Tim Howard

A planning panel decision to refuse a controversial DA for 284-lot development in West Yamba is “historic” and “monumental”, according to opponents of the plan.

Last Tuesday The Northern Region Planning Panel met last week to consider a DA for the development at 52-54 Miles St, Yamba.

On Monday the panel determined with a 3-1 vote in favour of refusal.

The development, with an estimated value in excess of $46 million, has been controversial from the start.

It was withdrawn once because of a large number of non-compliances and was the subject of 330 submissions from the public, with all but two opposing the development.

Adding to the controversy was a resolution made at the last Clarence Valley Council meeting recommending the panel refuse the development, going against a council staff assessment recommending approval.

At the NRPP meeting last week 12 residents made submissions opposing the development.

The determination to refuse cited section 4.16 of the Environmental Planning and Assessment Act 1979.

It gave four reasons for refusal

1. The proposed development relies upon signifcant additional flling of the subject site. There is some discrepancy between the assessment report and the submitted application documents in relation to the intended minimum fnished surface levels. Insuffcient information was evident as to the quantity of additional (not yet approved) fll material, an approved source for this and the required method of transport to the site. Accordingly, the Panel could not be satisfed as to the environmental and amenity impacts of this required flling activity as part of the project, having regard to the provisions of cls. 5.21(2)(e) and 7.2 of the Clarence Valley LEP 2011 and s.4.15(1)(b) of the Environmental Planning and Assessment Act 1979.

2. The site is in a high-risk food catchment, where food planning is in transition. The proposed residential subdivision would necessitate evacuation in major food events and is not intended to provide a food refuge for residents who may otherwise be isolated for signifcant periods of time. Some of these are likely to be vulnerable persons. Mindful of the need to apply a precautionary, risk-based approach to the determination of development applications in food-affected locations, the Panel did not have evidence that there would be adequate capacity or facilities for additional evacuees in safe evacuation centres. Nor did the SES email response to the proposal provided to the Panel address this issue or its capacity to support an evacuation of this subdivision, only noting that the warning triggers for evacuation in the applicants’ Flood Evacuation Plan were consistent with those in the local Flood Emergency sub-Plan. Accordingly, the Panel was not suffciently satisfed in relation to safe evacuation measures for the purposes of cls. 5.21 of the Clarence Valley LEP 2011 and having regard to s.4.15(1)(b), (c) and (e) of the Environmental Planning and Assessment Act 1979.

3. Having regard to s.4.15(1)(d)of the Environmental Planning and Assessment Act 1979, the Panel has also noted the level of community concern and anxiety about fooding issues and associated insurance costs, the complexities of riverine and stormwater food impacts, as well as problems experienced with food warning, evacuation and potential resident isolation in Yamba.

4. ThePanel was not satisfed that an adequate Acid Sulphate Soils Management Plan for the development had been supplied to the Council, as required under cls. 7.1(3) of the Clarence Valley LEP 2011, noting that Council had required such a Plan to be submitted as a condition of any consent. Accordingly, the panel was not satisfed that the granting of consent would be in the public interest, having regard to s.4.15(1)(e) of the Environmental Planning and Assessment Act 1979.

One member, Penny Holloway, support approval of the development.

Ironically the decision came soon after one of the development’s major opponents, the Yamba Community Action Network, gave evidence to the NSW Parliament Portfolio Committee No. 7 – Planning and Environment.

YambaCAN secretary Lynne Cairns and member Helen Tyas Tungal had been invited to Sydney too give evidence of planning irregularities around developments in West Yamba to the committee.

Ms Cairns said the news of the refusal came through just after they had given their evidence.

“It’s a monumental decision,” Ms Cairns said. “In a way it was a shame it didn’t come through before we spoke, but overall it’s just the best news we could have had.”

Ms Cairns and Ms Tyas Tungal had both made submissions to the NRPP panel meeting last week.

Another prominent opponent of the DA, Cr Greg Clancy, described the decision was historic and should set a precedent for to planning laws.

Cr Clancy, who successfully moved for council to oppose approval for the DA at the May meeting, said it was likely DA would go to the Land and Environment Court, where hopefully it would be refused again.

“It was a shame this decision was made before the result of the Portfolio committee investigation were made public,” he said.

“The planning minister, Pau Scully, needs to defne his view on development on the foodplain, because he’s already stopped some developments down south.”

But he said whatever happened next, a precedent has been set.

“There will be now an expectation in the community that these sort of developments are not sustainable,” he said.

“So even though the planning staff felt this DA ticked all the boxes there was something in the Environmental Planning and Assessment Act that were factors other than just box ticking that were important.

Cr Clancy said he believed these were a section of the Act, s.4.15(1)(d), which said there had to be due consideration given to the concerns of the public.

He pointed out there had been 328 submissions from the public against approval of the DA.

“It’s good to see these submissions have been taken seriously, because sometimes planners tended to overlook them.”

In its determination the panel noted the concerns raised in submissions to it.

It noted issues included:

• Stormwater drainage

• Flooding and Flood evacuation

• Impacts associated with climate change

• Urban Design

• Impacts to biodiversity and natural environment

• Filling of land

• Infrastructure and services

• Environmental impacts associated with dredging

• Impact on town amenity

The Panel considers that concerns raised by the community have been adequately addressed in the Assessment Report and that no new issues requiring assessment were raised during the public meeting.