Submission opposing DA21/0010 ‘Nightcap on Minjungbul’.
A concept development application (DA) was lodged with Tweed Shire Council on 14 January 2021 over land at 2924, 2956, 2984 and 3222 Kyogle Road, Kunghur & Mount Burrell, hereafter referred to as “the site”. The application seeks approval for: Integrated Development – staged concept development application under s4.22 of the EP&A Act 1979 for multiple rural land sharing communities with stage 1 seeking approval for the upgrade of the existing private road and associated earthworks, vegetation removal and site construction office and storage area (NRPP).
In overview, the development is described in the application documents as a conglomerate of Rural Land Sharing Communities (RLSCs) that will establish 392 residential dwelling allotments and associated infrastructure (i.e. roads, essential services, community facilities etc.) in multiple stages over the approximately 1,584-hectare site(1). Notably, the application documents cite approximately 326 hectares of vegetation clearing to establish developable areas and to upgrade existing forestry tracks to trafficable, dual carriageway internal roads per the Rural Fire Service (RFS) and Australian Standards. The proposed concept plan and development staging plan are attached in Appendix 1.
The site is predominately zoned ‘RU2 – Rural Landscape’ under the Tweed Local Environmental Plan (LEP) 2014. A small portion adjacent the Kyogle Road frontage is zoned ‘RU5 – Village’ over which a prior concept development application(2) for a small village and ancillary infrastructure (DA06/1054) was approved in 2009.
Despite claims to the contrary in the application documents, the current proposal (DA21/0010) represents an inappropriate and gross over-development of the site, as well as a disregard for the sensitive environmental values of the subject land and immediate surrounds.
We hereby object to DA21/0010 both in its current form and any future iterations, and set out the grounds for objection in accordance with s79 of the Environmental Planning & Assessment (EP&A) Act 1979 and clause 71 of the EP&A Regulation 2000. The grounds for this objection (i.e. environmental planning grounds) as they relate to the subject matter, scope and purpose of the Act, are provided as follows:
Tweed Shire Council Local Environmental Plan (LEP) 2014
- The site is predominately zoned ‘RU2 – Rural Landscape’ under the ‘Tweed LEP 2014’ where a minimum lot size of 40ha is required. The clear intention is to prohibit the fragmentation and un-planned urbanisation of rural lands throughout the shire. The concept DA21/0010 directly contravenes the minimum lot size requirement by proposing 392 allotments ranging in size from 0.45ha to 1.0ha(3) within the RU2 designation. Such an attempt to establish residential development over rural land threatens to fragment the existing rural landscape, native vegetation, environmental corridors and fauna habitat over the site. A residential development yield and lot sizes of the nature proposed in DA21/0010 is clearly not envisaged nor supported under the current LEP.
State Environmental Planning Policy (Primary Production & Rural Development) 2019
- Despite the aforementioned conflict with the ‘Tweed LEP 2014’, the development application cites compliance with an overriding planning instrument(4), namely the ‘State Environmental Planning Policy (Primary Production & Rural Development) 2019’ which permits Rural Land Sharing Communities (RLSCs) on rural zoned land without the need for rezoning or associated policy amendments. Although the application claims to meet prescribed dwelling densities specified in the SEPP(5), there is a distinct lack of justification as to how the proposed 392-lot residential development on rural land meets the aims of the Policy(6) including to ‘reduce land use conflict…protect native vegetation, biodiversity and water resources’.
- The establishment of multiple dwellings on ‘RU2 – Rural Landscape’ zoned land under this SEPP must be consistent with the ‘existing uses of land in the vicinity’ (i.e. rural & environmental protection) and not be incompatible with such uses by attempting to alter the preferred and predominate pattern of land use in the vicinity(7). The specific matters of consideration under Schedule 5 of the SEPP pertaining to Rural Land Sharing Communities (RLSCs) are not properly addressed in the concept development application, particularly for later development stages, and include insufficient ‘arrangements for operating and managing the community’ and lack of appropriate justification for ‘the impact of the development on the environment and any present of future use of the land’. Clearly the purpose of the SEPP is to promote sensitive, well- conceived residential uses on rural land in a limited and appropriate capacity, not as a means to evade local planning laws to establishment a large 392-lot residential development in an overwhelmingly rural and environmentally sensitive context.
Strategic / Forward Planning
- The proposed development purports to be consistent with relevant strategic planning documents, but fails to address or satisfy numerous key outcomes specified therein. The application documents claim the development will deliver environmentally sustainable growth and strengthen communities of interest including Tweed Heads and Lismore regional centres(8) under the ‘North Coast Regional Plan 2036’. On the contrary, the proposed inappropriate minimum lot sizes and yield on rural zoned land essentially constitutes ad-hoc, un-planned and un-serviced residential development outside a mapped or envisaged urban growth area.
- The application claims to meet planning priorities (PP) under the ‘Tweed Local Strategic Planning Statement’ including the protection of productive agricultural land (PP10), provision of housing supply (PP15) and promotion of affordable and well located housing (PP16)(9) but fails to evidence how the proposed 392-lot residential development on RU2 zoned land containing significant environmental values meets the vision of the Tweed LSPS to ‘protect and enhance our internationally significant natural environment’.
- The small portion of site zoned ‘RU5 – Village’ adjacent to Kyogle Road is identified in the ‘Tweed Urban and Employment Land Release Strategy (TUELRS) 2009’ as having potential to accommodate a moderate future increase in residential dwelling capacity; hence the aforementioned approval of a concept development application for a small village and ancillary infrastructure (DA06/1054) therein. However, the remainder of the site over which the current 392-lot development is proposed has not been nominated for potential land release(10) under the ‘TUELRS 2009’.
- A number of other relevant strategic, forward planning documents are referenced in the development application alongside claims of consistency with the current development proposal. These include the ‘Tweed Community Strategic Plan 2017- 2027’, the ‘North Coast Settlement Planning Guidelines 2019’, the ‘Tweed Rural Villages Strategy 2016’, and the ‘Tweed Rural Land Strategy 2020-2036’. However, the proposed 392-lot development on RU2 zoned land declares only housing supply outcomes and fails to adequately address the practical and efficient provision of infrastructure or other relevant strategic planning criteria including those regarding the protection and enhancement of rural character and sensitive environmental values.
- The proposed development gains access from a single ingress/egress point on the Kyogle Road frontage, and involves an extensive internal road network of approximately 50 kilometres(11) to provide vehicle access to the proposed developable areas of the site. The application documents claim the internal network is already in place, referring to single carriage internal vehicle tracks previously utilised to access forestry plantation lots as requiring widening to dual carriageway, grading and sealing works, and the establishment of a 20m wide easement over the entirety that is clear of vegetation for bushfire asset protection(12). The outcome is suggested to be a “ribbon type development layout across the site…that utilises established trails and previously disturbed land”(13). Interestingly, the existing forestry plantation tracks are conveniently in exactly the necessary locations to enable access to the proposed developable areas of the site. Nevertheless, it is considered that the justification to utilise such tracks as a means of minimising vegetation clearing, rather than the alternative of designing a new, smaller scale internal network and closing old forestry tracks for rehabilitation, has been used divisively in the application to maximise development potential over the site. The result is excessive internal roads and associated vegetation clearing, hardstand runoff and other known environmental disturbances associated with roads for a “ribbon type development” that fragments the surrounding vegetation and does not truly achieve a clustered development per the aforementioned SEPP(14) but instead creates a sprawling development of multiple clustered residences across the site.
Essential Services Infrastructure
- The site does not have the ability to readily connect to reticulated mains infrastructure due to its rural location and distance to established towns and villages, with the exception of potential extension of mains power supply and telecommunications from the Kyogle Road frontage into the site. Consequently, the application documents describe an “off-grid” or “self-sufficient” approach to the provision of essential services infrastructure to the proposed 392-lot development(15). This is said to include on-site wastewater treatment and rainwater harvesting into tank storages for potable water and firefighting purposes, or the establishment of bores to utilise ground water storage aquifers(16). This approach is then contradicted in the application with the statement that “dwelling plots have the ability to offer essential services by traditional means”(17).
- In essence, the provision of essential services infrastructure to the proposed “ribbon type development” scattered extensively throughout the site is problematic and not properly described or resolved in the application. The assertion that “soil types throughout the site are capable of accommodating on-site irrigation” and that “sufficient land area is available to buffer treatment systems from sensitive environments such as waterways”(18) are statements that lack proper evidence to demonstrate how such an approach will be practically achieved for the proposed 392 lots without causing harm to human health or the surrounding environment. Moreover, the utilisation of bores to access ground water as an alternative water source during periods of drought is not an acceptable solution without proper investigation into aquifer capacity nor within a site identified as having ‘moderate’ to ‘moderately high’ groundwater vulnerability(19).
Ecological Assessment & Threatened Species
- A basic ecological assessment has been prepared to support the proposed concept development application, but addresses only Stage 1 of the anticipated site works which involves the upgrade and sealing of private road access on the Kyogle Road frontage of the site(20). Consequently, the report claims that no threatened flora or fauna species listed under the ‘Biodiversity Conservation Act 2016’ or the ‘Environmental Protection and Biodiversity Conservation Act 1999’ will be adversely impacted by the proposed development(21). This assertion is made despite opportunistic and targeted surveys revealing 7 threatened flora species and 21 threatened fauna species over the site that are protected under the aforementioned legislation(22). Furthermore, the basic ecological assessment states no need to further investigate the potential occurrence of 17 threatened flora species and 48 threatened fauna species identified in the ‘Atlas of NSW Wildlife’ database (NPWS 2019) as previously occurring in the locality, nor the potential adverse impact of the proposed development on them, because such species were not recorded during initial searches within the “proposal envelope” and suitable habitat is claimed to be absent(23). Regardless of the conceptual nature of the development application, a proper and well-considered assessment of significant species is absolutely critical to determine the appropriateness or otherwise of any development proposal within the significantly vegetated site.
- Notably, the potential occurrence of Koala (Phascolarctos cinereus) was deemed “unlikely” over the site, and thus unlikely to be significantly affected by the proposal, as favoured habitat and forage trees for this species are considered to be absent from the works footprint, as well as no direct (sighting) or indirect (scat/scratch) evidence(24). This is a questionable finding since the species is known to occur in the locality, has been sighted previously therein, and a vegetation community identified over the site ‘Pink Bloodwood – Tallowwood moist open forest of the far northern ranges of the NSW North Coast Bioregion (PCT 1073)’ supports the known and favoured forage tree species Tallowwood (Eucalyptus microcorys).
- The application documents state that the proposed development will necessitate 329 hectares of vegetation clearing within the 1,584-hectare site(25). The majority of clearing works is stated to occur within Pink Bloodwood – Tallowwood moist open forest (91 ha), Eucalypt plantation forest (102 ha) and cleared paddock areas with scattered trees (117 ha), with only minor portions of Dunn’s White Gum tall open forest (15 ha) to be impacted. These are claimed to be a ‘worst case scenario’ that will be significantly reduced in subsequent applications for later stages of development(26). However, the application does not appear to include potential additional vegetation clearing to establish necessary bushfire Asset Protection Zones (APZs), or for reticulated services infrastructure where this may potentially occur. Furthermore, the application suggests that forestry Eucalypt plantations over 370 hectares of the site may be potentially cleared under a NSW DPI permit (Draft Plantation Plan GR0604P re-authorisation)(27). Consequently, the anticipated vegetation clearing as stated in the concept development application does not clearly articulate the full extent of potential clearing required to facilitate the development, nor do the purported clearing rates represent a “worst case scenario”. It is also noteworthy that the 240 hectares of open space identified in the concept plan (Appendix 1) is earmarked for potential “minor development” as part of future development applications(28) and therefore may also be subject to vegetation clearing and disturbance which would significantly increase the stated extent of vegetation clearing.
Fauna Corridors & Habitat Fragmentation
- The concept development application disregards Tweed Shire Council mapping which illustrates a key fauna corridor traversing east to west through the central portion of the site. Despite acknowledging the occurrence of high-quality ecological vegetation and noting observations of native fauna species therein, the “ecological corridor has been tested and the mapping discounted” on the basis that the mapped corridor comprises areas of Eucalypt plantation forest and “risks segregation by the potential future dam”(29). Rather, the application suggests that the fauna corridor exists along the southern boundary of the site, and provides “site specific mapping” to that effect but no other suitable evidence to support such a claim. Consequently, it is apparent that the mapped fauna corridor “constraint” has been strategically moved to a convenient location so as not to interfere with or present an obstacle to the proposed development layout and achievement of developable areas.
- The application states that “rehabilitation works should seek to stabilise and reverse the negative effects of habitat fragmentation” and goes on to assert that habitat fragmentation reduces the viability of flora and fauna populations by restricting their range and natural exchange of genetic material(30). These points are widely accepted; however, the irony of such statements is glaringly obvious when reviewing the proposed development concept plan (Appendix 1), which seeks to formalise an extensive network of roads throughout the site and clear 329 hectares of vegetation (and potentially more, as previously discussed) to establish a “ribbon type development” over the site.
- The Preliminary Rehabilitation Plan that has been prepared to support the concept development application claims that over 900 hectares of the site “has the potential to achieve ecological outcomes and for retention, protection and/or restoration purposes”, and further suggests that “residual areas of open space are proposed for restoration (where appropriate)”(31). These statements are considered to be inaccurate and misleading when tallying up the proposed dam area (329ha), the vegetation clearing which incorporates the proposed developable areas (329ha), the proposed open space areas which have been earmarked for potential minor development (240ha), the village centre (44ha) and community facilities (15ha), and subtracting the total from the 1,584-hectare site area (i.e. 627 hectares). The claim of over 900 hectares of rehabilitation potential also conflicts with the proposed concept plan (Appendix 1) which depicts 541 hectares of “environmental protection/rehabilitation areas” and 96 hectares of “environmental linkages”. Furthermore, the proposed rehabilitation areas shown on the concept plan include portions of forestry plantation that may undergo clearing via the DPI re-authorisation permit (GR0604P) that is sought by the applicant(32).
Prepared By: Caldera Environment Centre
Address: Murwillumbah NSW 2484
Date: 08 March 2021
Development Application Reference: DA21/0010. Development Address: 2924, 2956, 2984 and 3222 Kyogle Road, Kunghur & Mount Burrell
Appendix 1 – Development Concept Plan & Staging Plan
1 Statement of Environmental Effects, p.36
2 Environmental Planning & Assessment Act 1979, s4.22
3 Statement of Environmental Effects, p.41
4 Statement of Environmental Effects, p.7
5 Statement of Environmental Effects, p.36
6 State Environmental Planning Policy (Primary Production & Rural Development) 2019, Part 1
7 State Environmental Planning Policy (Primary Production & Rural Development) 2019, Schedule 4 Part 2
8 Statement of Environmental Effects, p.55
9 Statement of Environmental Effects, p.56
10 Statement of Environmental Effects, p.57
11 Statement of Environmental Effects, p.46
12 Statement of Environmental Effects, p.45
13 Statement of Environmental Effects, p.45
14 State Environmental Planning Policy (Primary Production & Rural Development) 2019, Schedule 5 Part 2(c) 15 Statement of Environmental Effects, p.29
16 Statement of Environmental Effects, p.29
17 Statement of Environmental Effects, p.38
18 Statement of Environmental Effects, p.29
19 Statement of Environmental Effects, p.25
20 Statement of Environmental Effects, p.8
21 Basic Terrestrial Flora and Fauna Assessment, p.28 & p.38 22 Preliminary Rehabilitation Plan, p.20 & p.26
23 Basic Terrestrial Flora and Fauna Assessment, p.28 & p.38 24 Basic Terrestrial Flora and Fauna Assessment, p.44
25 Preliminary Rehabilitation Plan, p.32
26 Preliminary Rehabilitation Plan, p.32
27 Statement of Environmental Effects, p.17
28 Statement of Environmental Effects, p.47
29 Statement of Environmental Effects, p.23
30 Preliminary Rehabilitation Plan, p.35
31 Preliminary Rehabilitation Plan, p.35
32 Statement of Environmental Effects, p.17