A current Council meeting agenda item is the already approved though not acted upon historical Legacy Development Approvals which would not meet today’s DA requirements, and if anything can be done to bring legacy developments consents into line with current development standards.
From the TSC Meeting May 18 Agenda:
“The NSW Planning system has created the ability for historic legacy developments to sit dormant for a long period of time. Over this time planning laws change and environmental and community protections have improved in order to manage the impacts of developments on the landscape and the surrounding communities. However, some of these legacy developments may have established lawful physical commencement and remain valid to this day despite sitting dormant for some time.
“The issue with these historic legacy developments is that they often have very outdated controls placed on them, and the world has moved on from the times when approvals were given to when these developments are constructed. A case in point was the Total Destination Resort approved at Wooyung in 1988 prior to Council having a good understanding of the implications of acid-sulfate soils and their disturbance on our landscape and waterways, or the industrial estate approved in 1996 at 60 Tringa Street, Tweed Heads where large amounts of tree clearing was approved in an area that has been identified in state planning documents as high conservation areas. Council needs to know what if anything can be done to bring these older developments in line with current planning laws and how this can best be implemented
“RECOMMENDATION:
Cr Cherry moves that Council:
- Seeks legal advice on what if anything can be done to bring legacy developments consents into line with current development standards. The advice to include options available to Council with particular reference to the recent Lindsay Taylor Lawyers article on same and the ability of Council to require compliance with conditions of consent in the legacy approvals.
- Seeks legal advice on whether Councillors can have the delegation to call up any matter (Modification, CC, Compliance with Conditions) related to legacy developments where environmentally significant areas are likely to be impacted. Legacy developments for Tweed Shire Council are defined as developments approved between 1980 and 2010 that have not been constructed and are of a higher order development than a residential house or alteration to a house.
“MANAGEMENT COMMENTS:
Council staff have previously been requested by Councillors to provide advice in respect of the Lindsay Taylor Layers web site article dated 2 August 2022 titled “Zombie Development – Acting on Old Development Consents.
The following extract from this article was highlighted and comment provided below:
“Revocation or surrender of consents
A council or the Planning Secretary can revoke or modify a consent which is in force if of the view that the development should not be carried out or completed, having regard to the provisions of any proposed local environmental plan or State environmental planning policy (s4.57 of the EPA Act).
This can only be done after consultation with persons who would be affected by the revocation or modification, and compensation is payable. It is not a power that is often used for that reason. Importantly, however, in the absence of a proposed planning instrument, the power cannot be used.
Under s4.63 of the EPA Act a person entitled to act on a development consent can also voluntarily surrender the consent.”
Revocation can only occur if there is a draft Local Environmental Plan or State Environmental Planning Policy on foot that would be offended by the development proceeding. There are currently no such processes in play in the Tweed Shire.
The other issue that the LTL advice highlights is the other approvals from other agencies that are required. Proponents would still have to get these if they are required. The other approvals if any are a matter for the other agencies who administer those approvals. It’s up to them if they are granted or not if in fact any other approvals are required.
If the above matters cannot be satisfied, pursuing a revocation action for a DA therefore comes at a significant risk to Council.
Council may wish to defer consideration of this item until the cost and resources are known from the current investigation from the Tringa Street industrial development so that this can be extrapolated across the scope of what Council is seeking to gain a better understanding of the cost and resource impact.
“Budget/Long Term Financial Plan:
Costs will be incurred to engage solicitors to provide advice to Council.
Additional staff resources will also be required to assist the solicitors in the search of Council records for older approvals documents so as not to affect DAs currently within the queue for processing of Council’s day to day operations under the State’s Records Act.
“Legal Implications:
Advice will need to be sought. Any further decision by Council to seek revocation of older development and construction approvals would need further legal advice.”
