Simon Cox - 21 September 2021

Simon Cox presented to Council at the Public Access Session on 21 September 2021.

• Download Simon's Submission here (1.06 MB)

Council's reply

Please find below, a response to the matters you raised during the Public Access Session.

Question

1. It appears there has been no studies undertaken about the impact of this development on the environment and biodiversity for this DA for over 38 years. Considering there have been significant changes to the original DA, significant changes to governing legislation, and significant research undertaken that indicates how fragile this local ecosystem is, wouldn’t this be the perfect opportunity for Council to ensure the local environment was protected?

   How are Council or the developers assessing the environmental impact considering there have been no modern assessments undertaken? On what basis are you assessing that the modifications mean there will be no increase in environmental impact? What experts in environmental science have Council sought advice from when making these judgements, and is Council open to sharing this evidence with the community?

   How can the developers and Council satisfy concerned community members that they have done their best to protect this important foreshore and the Endangered Ecological Communities that the land borders? Why is there a reluctance to even ask the developer to consider undertaking modern environmental assessments?

   It is abundantly clear the development encroaches on the proximity area for coastal wetlands, and it is clear that the new modification now “juts into” remnant littoral forest. If the maps showed coastal vulnerability areas, no doubt there would be even more of the development zone included in that.

   Having spoken to the developers, they sound open to modern environmental assessments, in fact were half expecting to undertake them. Can Council asking them to proceed with modern biodiversity and environmental impact assessments hurt?

   Response

   The application is still under assessment and therefore the environmental assessment of the proposal is still currently being reviewed. The applicant also 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 that the site was approved to be a residential subdivision in December 1984 and therefore the site is already considered cleared for the purpose of the Biodiversity Conservation Act. Council, as part of its normal process, is currently reviewing case law and the legislation to determine the legality of this position.

   It is also the applicant’s contention, and Council’s view, that there is no additional clearing required over and above the existing approved development footprint. In this respect, no ecological assessment has been provided with the application. If it is determined otherwise, then the applicant would need to consider the additional impact and requirements of the Biodiversity Conservation Act. It needs to be reiterated that Council has not finalised its assessment of the application and it is not possible to be determinative in these matters.

   In regard to the mapping provided, it is an extract of the State Environmental Planning Policy (Coastal management) 2018. The mapping shows the extent of the coastal wetland and the proximity area. Clause 10 and 11 of the Coastal Management SEPP deal with development within a wetland and development within proximity of a wetland. The proposed development is not within a wetland as prescribed by the SEPP but is within proximity of a wetland. Clause 11 specifically deals with land in proximity of a wetland or littoral rainforest and requires consideration of whether the proposed development will have an effect on the biophysical, hydrological or ecological integrity of the adjacent wetland or littoral rainforest. Council will consider these clauses in its assessment of the application. There is no littoral rainforest within proximity of the development footprint.

   Council has referred the application to the NSW Rural fires Service and to the Batemans Marine Park Authority for comment, even though the application was approved prior to these legislative requirements being in place. The application has also been amended to introduce bioretention swales and onsite detention (OSD) to deal with water quality treatment and water runoff to Coila Lake. The applicant is also proposing to reduce the through road to a shared pathway as part of the application. This shared pathway moves through swamp oak floodplain Endangered Ecological Community and therefore the reduction in road construction is a lesser impact.

   Question

2. Are you saying that because the DA was approved in 1983, it is no longer the responsibility of Council to ensure that the environment is treated with modern duty of care? That the requirement for careful scientific scrutiny does not apply?
   

   Could council please explain why a current biodiversity and environmental impact study is not within their purview? Surely there are ways Council can influence the developers in a collaborative fashion to satisfy the community that this development will not detrimentally impact the local endangered ecosystems?

   Response

   Refer to response for 1 above. Council has worked collaboratively with the developer to provide for greater levels of water quality treatment and ensuring that proposed lots are as far away from the lake as possible. One of the main reasons why the 2011 application did not progress was that the developer proposed lots north of the Monash Avenue extension (and therefore closer to Coila Lake).

   The NSW legislative framework provides for the site to be treated as if it is cleared and the existing 1983 approval would allow them to clear the site now without any further assessment by Council. Furthermore, Council has a legislative requirement to assess what is put forward by the applicant and then to determine the application by way of an approval or refusal.

   Question

3. The drawing above of the development zone encroaching into the remnant littoral forest is significantly different to the original DA plan which did not do this. I would share a picture of the 1983 plan with you, but Council are yet to share the documents we have formally requested through the GIPA.

   How can significantly more trees not have to be removed from the foreshore considering how much closer the houses are to the forested areas in the new modification? Especially considering the new changes to bushfire regulations in response to the 2019 fires?

   Response

   The development footprint is the same as the original development footprint. The plans show the original development footprint and the proposed development footprint. The northern and western edge of the development footprint closest to the Endangered Ecological Community (EEC) are the same. No clearing in the existing public reserve to the north would be permitted.

   Question

4. You state that indigenous communities have been consulted with. When was that? 1983? Or when one of the former DA's was attempting to move forward in 2006 or 2012? Can you provide details of the indigenous people consulted and the dates when they were consulted? What does the Council consider an appropriate level of engagement with indigenous communities? Does consulting with indigenous communities for a different DA count as fair engagement for the current DA?
   

   Response

   In regard to previous consultation over cultural heritage matters, it can be advised that Development Application 223/12 (DA223/12) was lodged on the 13 October 2011 for a 71- lot subdivision on the subject land. This application is yet to be determined but did include a cultural heritage assessment prepared by Onsite Cultural Heritage Management dated May 2015. Local indigenous communities were consulted as part of this report and include.

   • Ngunnawal Elders Corporation
   • NSW Aboriginal Land Council
   • Cobowra Local Aboriginal Land Council
   • Matong Merringanna Aboriginal Corporation
   • Yuin traditional owner
   • South East Coast Gadu Elders Aboriginal Corporation
   • Mogo Local Aboriginal Corporation
   • Bodalla Local Aboriginal land Council
   • Batemans Bay Local Aboriginal Land Council
   • Batemans Bay Aboriginal Corporation
   • Jerrinja Consultants P/L
   • Merrimans Local Aboriginal Corporation
   • Walbunja Aboriginal Corporation
   • Gunjeewong Cultural Heritage Aboriginal Corporation.
     
     It should be noted that as part of this application, General Terms of Approval (GTAs) were issued by the NSW Office of Environment and Heritage. GTAs are an agencies response to integrated development and are also generally a precursor to the issue of a permit or other license by the agency, ie, once development consent is issued it would be expected that an AHIP would have been issued.
     
     Council will require, via a condition of consent, that an AHIP be obtained prior to works commencing, but it is not possible for the developer to obtain one prior to this amendment being determined. Advice from the NSW Government agency (Heritage NSW and its previous equivalent, Office of Environment and Heritage) is that they require the development consent to be in place before an AHIP is issued. Council is not the authority for administering the National Parks and Wildlife Act. Heritage NSW has specific requirements for consultation as part of the AHIP process.

   Question

5. How can this be considered a courtesy? I clearly stated in both my submission in writing and when I spoke on record that I was speaking on public record on behalf of the group. I would appreciate the opportunity to answer questions this time around.
   
   Was the stifling of questions to avoid answering our questions on public record?
   
   Response
   
   The courtesy provided is to ensure that you are not asked questions that other members of your group would be able to answer but you are unable to do so. If you wish to answer questions in the future, then you should register to speak as yourself and not as the representative of a group. The apparent ‘stifling’ of questions was not to avoid answering questions on record and as advised above, if you register as a person and not as a group, you will be able to answer questions.
   
   New Question
6. Is it lawful for Council to, as per the below email from Mark Brain, formally cease communicating with a concerned community member and just “log their emails”? My email is clearly and reasonably asking for clarification of the development process as it is very unclear to the community how the development process continues from here? Mark states:
   
   As a matter of courtesy, I need to advise you that any further correspondence regarding this issue will be read and filed, but not responded to.
   
   I request that Council formally answers the questions they have not already answered from my email below dated Friday, 13 August 2021 9:13 PM.
   
   Response
   
   There are two matters that need to be addressed here. Firstly, it is important that all correspondence is sent to Council’s formal email address – council@esc.nsw.gov.au. This will ensure that your correspondence is registered and that you will receive a response. Secondly, Council has responsibility to use its resources in an efficient manner. Where council continues to receive enquiries asking the same or similar questions, and/or is not able to answer due to the application still being under assessment and therefore a position not determined council may chose not to respond. Where you feel that such action is inappropriate you are free to raise it with the NSW Ombudsmen.
   
   Details regarding the assessment process can be found on Council’s website and is also provided in your acknowledgment letter for any submission that you lodge. A link to council’s website and the development process is provided for your convenience. The DA process | Eurobodalla Shire Council (nsw.gov.au)
   
   Council generally provides the applicant the opportunity to respond to issues raised in submissions received. Once this is received or the applicant advises that they do not wish to respond, Council would carry out its assessment and determine the application. Additionally, sometimes the applicant based upon the submissions may amend the application and Council would then need to reconsider the proposal, including whether it need to be renotified. As a member of the public, you have a legal right to lodge a submission for any application publicly exhibited and potentially to seek a judicial review through the NSW Land and Environment Court if you believe that proper process has not been followed.
   
   New question
7. The community has noted both in formal submissions and in discussions with Council, that there is a strong reluctance to share information with the community about this development. This has now extended to a formal GIPA request that is meant to take 20 working days, but has now extended beyond 2 months waiting time. We recognise some documents dating back that far will be hard to put your hands on, however, 2 months is a very long time and these documents are now well past due.
   
   Also, it has been confirmed by the staff member conducting the document collection that any documents post 2010 pertaining to this development be given to us by the development team. These documents should be readily available documents to the public. But here we are two months later, and only a few documents have been produced.
   
   Can I confirm why there have been these lengthy delays, and what the Council obligations are around sharing these documents with the public informally, or under formal GIPA request?
   
   Response
   
   The GIPA request has been completed and you have been provided with an electronic copy of Council files in relation to the development site. There were several files and the files had to be scanned due to COVID and reviewed by staff prior to it being able to be downloaded by you. Council apologies for the delay but there was a process that had to be followed prior to its release to you.