Simon Cox - 17 August 2021

Simon Cox presented to Council on behalf of the Coila Cultural and Environment Group (CCHEG), at the Public Access Session on 17 August 2021.

Coila Cultural Heritage and Environment Group (CHEGG) Presentation to

Eurobodalla Shire Council

17 August 2021


  1. Thank you for this opportunity to address Eurobodalla Shire Council. My name is Simon Cox and I am spokesperson for the Coila Cultural Heritage and Environment Group (CHEGG). This group was formed in response to the modification MDA0124/20 and development application DA2248/1983 proposed subdivision (Lot 325 DP 244559). We represent a rapidly growing group of Tuross residents opposing this modification and development.
  2. I would like to begin this presentation by acknowledging the original custodians and traditional owners of the land in and adjacent to the proposed development in Tuross Head. Tuross Head and Coila Lake were the permanent dwelling places for a significant population of Aboriginal people who lived here for many thousands of years prior to the arrival of Europeans.

This land is very important for its unique environment hallmarked by its close proximity to four endangered ecological communities, being:

a.  Seagrass beds in the shallow subtidal area which provide a safe breeding area for marine wildlife and birds.

b. Remnant littoral rainforest adjacent to the development which supports many species of forest birds, native mammals and reptiles. In 2020, bushfires raged destroying 80 per cent of Eurobodalla LGA bushland.  Animals have sought refuge in remnant bushland in and around Tuross Head including bushland and remnant rainforest around Coila Lake. These unburnt remnants are even more deserving of additional protection.

c. Saltmarsh which is essential to the health and well-being of the Coila Lake system and supports many birds which are threatened or endangered.

d.  Wetlands supporting flora and fauna, some listed as endangered and threatened. The wetlands support and link Coila Lake to the Littoral Rainforest and Saltmarsh. Coila Lake is an Intermittent Closing and Opening Lake & Lagoon, (ICOLL).  The NSW Department of Planning, Industry and Environment has identified that inappropriate coastal development is a serious threat to ICOLLs.  As such, Coila Lake foreshore deserves special consideration and protection regardless of the approval of this development.

  1. This land also holds a rich cultural history for the areas First Nations people and no cultural heritage assessment has been undertaken in relation to this development. Our group’s research has uncovered a strong likelihood of grave sites on the eastern end of the development, extremely large numbers of archaeological artefacts have been found on the western end of the development, and until our Group intervened the Council has had no clear plan to formally assess the cultural heritage of the site or engage with the local indigenous community about modifications.
  2. The Eurobodalla Shire Council has told our group that under either ss 4.55 (1A) or ss 4.55 (2) of Division 4.9 of the Environmental Planning and Assessment Act 1979 (NSW) that the DA modifications are substantially the same by deciding that they are either:

“of minimal environmental impact” and “is substantially the same development as the development for which the consent was originally granted.”[1]

Or, that it:

“is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.[2]

CCHEG maintains the ESC’s assessment is misguided, and given that there has been no Environmental Assessment, cultural heritage assessments or social impact studies undertaken for this DA, Council have made an uninformed judgement and the modifications should be rejected.

A. Substantially the same development

A key test for both the above applications is that a modification has to be “substantially the same development”.  The term substantially means essentially or materially having the same essence.

Coila Cultural Heritage and Environment Group (CCHEG) maintain that it is not “substantially the same” on the following basis.

Number of dwellings

The 1984 approval was for 60 dwellings. The modification increases the number of dwellings by 12 to 72. The proposed modification increases the dwellings by 20 percent.  Twenty percent is statistically significant[3] and therefore a substantial change.

Fire Trail

The 1984 approval did not contain a road linking the western and eastern sides of the development. The proposed modification contains a 5.5-metre-wide fire trail cutting through the both sides of the development from Coila Avenue to Chauvel Crescent. The new road transverses the creek and remnant bushland creating another substantial difference. Additionally, Council’s letter to the developer (22 July 2020) indicates that they would like to retain the option of opening it is a link road in the future. Therefore, once the fire trail is established, Council can make it a public link road without reference to the community.

Extension & connecting of roads

The 1984 proposal made no change to Chauvel Crescent. The 2021 modification extends Chauvel Crescent which is a very narrow road with two dog leg turns and a blind corner. In 2021, households often have two cars. An increase of 24 vehicles is a substantial increase in the hazard presented to wildlife and humans on these smaller roads. The strong right-angled turning, the small amount of space for vehicles to queue as they turn and the double-tee entrance at the eastern end also make this particularly unsafe. As a potential through road in a fire emergency or opening as a public link road Chauvel Crescent is completely unsafe.

New dwellings on Chauvel

The 1984 development had five dwellings on Chauvel Crescent. This modification adds 16 new dwellings fronting Chauvel Crescent. This 220 percent increase can only be considered a material change, and is particularly substantial for such a narrow road with sharp bends.

Twenty percent increase in dwellings

This modification changes the original consent with a 20 percent increase in the number of dwellings, the addition of a 5.5-metre-wide sealed fire trail, an extension to Chauvel Crescent including rerouting increased traffic through small narrow roads and a 220 percent increase in the number of dwellings fronting onto Chauvel Crescent. The modification is not substantially the same as the 1984 development.

Question 1. CCHEG requests that the ESC provides a written summary of your evidence demonstrating how you assess the modification is “substantially the same development”? As a result of the Environmental Planning and Assessment Amendment Act 2017, we understand a written summary is now an essential part of substantiating any “judgement call”.

B. Minimal environmental impact

The current amendments are not materially the same as the original DA due to significantly different impacts on the natural environmental around the development zone.

The modification adds an extra 20 percent increase in the number of dwellings. The increased density of dwellings and residents, create a corresponding increase in the impact on the fragile foreshore, remnant rainforest, wetlands, sea grass, endangered bird life, reptiles, mammals and marine life which all rely on Coila Lake and it’s surrounds for refuge and food.

Limited drainage

There are 18 dwellings proposed on the eastern side of the modification and development, (blocks 59 to 76). The modification provides no drainage for runoff from the rooves and driveways of these dwellings. The additional runoff water poses a threat to the continued existence of the remnant rainforest, the fragile wetlands, seagrasses and saltmarsh.

The dwellings located on the western side of the development have provision for drainage on blocks 2 and 36. However, runoff from the eastern side of the development, (blocks 11to 25, 46 to 57 and 59 to 76), will follow the contours of the land draining towards the east with more runoff and sediment heading towards the fragile foreshore of Coila Lake. This will compound the impact on habitat and fauna along this part of the lake.

New fire trail

The 1984 approval did not contain a road linking the western and eastern sides of the development. The new road runs perilously close to endangered ecosystems and remnant bushland. -This demonstrates a material change to the environmental impact of this development.

Tree clearing

This development application provides for the removal of all trees in the proposed development area. 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.

Additionally, given the increased density of housing on the eastern end of the development and smaller lot sizes (depth 42M), clearing of trees on adjoining forested land appears necessary to achieve a 36m clearing between houses and forest.  This also a represents a material difference to the original DA.

Question 2. CCHEG requests that the ESC provide written evidence demonstrating how you assess there will be “minimal environmental impact” of these modifications on the sensitive endangered ecosystems on the Coila Lake foreshore given the significant changes to environmental impact mentioned above?

C. No environmental assessment

It is clear that Council is progressing this development without any assessment of the environmental impact it may cause. Council staff recently confirmed that no Environmental Assessment has ever been undertaken for this DA.

If this land was zoned today, it would never be classified as residential, and would be carefully revegetated to protect the fragile ecosystem it surrounds. In addition, a DA, would not be approved today due to the sensitive environment it surrounds and the significant social and cultural heritage issues.

Council state their position on this DA, approved over 37 years ago, is “once approved, always approved”. Council staff state their responsibility lies with guiding this development to being as well planned as possible. Council staff also suggest that Biodiversity is a Federal Government issue, and the environment and cultural heritage issues lie with the State.

The State Government maintained in a recent letter from the NSW Southern Region Local and Regional Planning that:

“Council is responsible for considering a broad range of matters in its assessment of the application, including impacts on the environment.”

Whatever your view, it is impossible to decide a complex issue like environmental impact without having assessed it.

We wish to be clear that:

(1) There have been no scientific studies undertaken to assess the impact of this DA and its modifications on the nearby endangered ecosystems.

(2) There has been no evidence presented to the Community demonstrating compliance with State Environmental Planning Policy (Coastal Management), and

(3) No evidence exists demonstrating whether development will impact on biodiversity and protected flora and fauna in compliance with the Environment Protection and Biodiversity Conservation Act 1999 (Clth).

Question 3. We respectfully  request that a comprehensive, Environmental Impact Assessment be undertaken prior to any work on this site. We also ask that you engage with the community in order to alleviate our strong concerns over the environmental impact of this is development.

D. No cultural heritage assessments - Aboriginal Heritage Impact Permit (AHIP)

There have been no cultural heritage assessments of the land undertaken by Council or the developer. A cursory test was completed for a different DA on the western side of the development. This failed to consider a 2006 study revealing significant archaeological findings in the same area.

Council recently stated to us that provisional approval has been granted on a separate DA.

We maintain that the previous study is incomplete and insufficient to comply with NSW legislation.

Our group have discovered much evidence indicating the critical importance of this land to the First Nations people of Tuross Head including.

  • The eastern side of the development zone reveals what appear to be grave sites with strong archaeological potential. This part of the development site has never been assessed.
  • Harry Warner and AIATSIS records indicate this area was used by the Brinja Yuin people for camp sites, ceremonies and burials. The area is likely to contain human remains and important artefacts.
  • In 2006, the western side of the development revealed a high density of findings - 324 artefacts per square metre – this is exceptional in archaeological terms! Given the size of the development zone we estimate there could be 2.6 million undiscovered artefacts potentially destroyed by this development.

We are pleased that our research and contact with the NSW Government recently confirmed the Council will be asking the developers to undertake an AHIP process in line with Section 90 of the National Parks and Wildlife Act 1974 which includes both the cultural and archaeological significance of Aboriginal objects impacted.

The local Indigenous Communities have expressed a strong interest in conserving the cultural heritage of this area and the natural ecosystem.  We have neither seen or heard any evidence that Council engaged with the local Indigenous Communities about the modifications and reawakening of this “zombie development”.

Question 4. We respectfully request that the Aboriginal Heritage Impact Permit be obtained by the developers prior to any further progress on this modification and development. We have also been asked by local elders to ensure Council proactively engage with them on this matter.  They would like to be involved in the design of the cultural heritage study so they can be assured of it’s efficacy.


Whilst we have asked you today for more information and certain actions, our group’s position is that a new DA process should be undertaken to ensure the best possible outcome for the local community, the local indigenous people and for the environment.

Thank you for this opportunity to present to Council regarding this contentious modification and development proposal in Tuross Head.