The Law

THE LAW, POLICY & STRATEGY – LOCAL & NSW STATE

The following laws, policies and strategies state that:

1.  Council was mandated in 1998 to initiate and evaluate a 2 storey limit in Hasting Point.  It did this finally with LEP 81 last year only to abandon it when developer pressure came on board.

2.  Council is required to consult with the community on its planning strategies and decisions.  Non-existent.

3.  Council should seek to increase density to prevent urban sprawl and maintain the region as a “region of villages” by increasing density in the towns and major regional areas but not at the expense of village character – ensuring that the identity and character is maintained in small coastal/lifestyle villages – such as HP.

4.  Council must ensure and preserve the ecological integrity of the environment by preventing incompatible development.

5.  Council must discourage and prevent ribbon/strip/cluster type development along major roads and in environmentally sensitive coastal locations.

6.  Council must avoid development which has an unacceptable cumulative impact on the community, locality or catchment.

For reasons of brevity, we have incorporated only a portion of extracts from pertinently relevant provisions to the Hastings Point predicament.  There are many more. Our comments are in red.

Tweed Local Environmental Plan 2000 (“LEP 2000″)

S. 4(a) The aims of this plan are to give effect to desired outcomes, strategic principles, policies and actions of Tweed Shire 2000+ Strategic Plan which was adopted, after extensive community consultation …..

S. 5 – An objective of the plan is to promote development that is consistent with the four principles of ecologically sustainable development:

(a) the precautionary principle – namely, that is there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment
(ii) an assessment of the risk-weighted consequences of various options, and
(b) inter-generational equity – namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations, and
(c) conservation of biological diversity and ecological integrity – namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration, and
(d) improved valuation, pricing and incentive mechanisms – namely, that environmental factors should be included in the valuation of assets and services, such as: …….

These issues regarding the environment are of huge concern to the HP community to save the ecological integrity of their delicate environment now and for the future consistent with NSW Coastal Policy and other legislation and policy below.

S. 8 – (1) The consent authority may grant consent to development …. only if:
…..
(c) it is satisfied that the development would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected by its being carried out or on the area of the Tweed as a whole.  The overdevelopment now proposed for HP will cumulatively destroy HP as we know it.

Tweed Shire 2000+ Strategic Plan – 17 December 1996

S. 129. Heights of Buildings. Current provisions for heights of buildings be retained in the new LEP and DCPs, with the exception of Kingscliff, Fingal, Hastings Point & Pottsville…. Initiate and evalutate a two storey height limit at Pottsville, Hastings Point and Fingal urban Zonings.

(Why have Pottsville & Fingal – both bigger and less sensitive than HP been given two storey and HP has not? LEP 81 was the long awaited implementation of the s 129 mandate but Council now derails it under development pressure contrary to NSW Department of Planning recommendations.

RURAL & ENVIRONMENTAL RESOURCES

One of the desired outcomes:  The natural scenic and environmental resources of the Tweed are no degraded or compromised by incompatible development.  HP is without doubt the most delicate and scenic coastal location in the Tweed.

SHIREWIDE STRATEGIC PRINCIPLES

Background

2. Provide leadership and coordination of planning activities at the local and sub-regional level through an integrated governmental and community approach to planning and decision making based on community values.
….
4. Incorporate the principles of ecological sustainability into Council’s financial, strategic and corporate planning decisions. Affirm community support for this long term, ongoing process through extensive consultation and participation.
…
10 Approve future development to create containment of existing villages and communities through the provision of green buffers between urban developments and to retain character and identity within each area.
….
16 Make social cohesion a primary consideration of planning and development. Fully consider the social effects of development before development application are approved.

17 Monitor changing growth patterns, community expectations and values, and achieve more effective community involvement.

18 Base the management of urban release area on the full cost recovery of the public infrastructure already provided, and the provision of infrastructure need to service growth at no cost to existing ratepayers.

Despite the principles Council espouses, Community Consultation does not exist!

Far North Coast Regional Strategy – December 2006

p. 4 The Far North Coast at 2031 is expected to be characterised by a series of contained centres, a coastal area protected from inappropriate development, and growing towns and villages across the region. A connected network of towns and villages will provide a choice of well designed housing and associated lifestyles.

Lismore and Tweed Heads will continue to be the major regional centres, with Ballina also emerging as a major centre. Coastal towns such as Byron Bay, known as a national and international tourist destination, will have retained their village character while still providing a gateway to many regional assests and attractions. Other towns and villages such as Casino, Kyogle, Uki and Bangalow will be recognised as places offering an alternative lifestyle. (HP one of the smallest of these)

p.6/7 The population and housing challenges are to:
- manage the expected population growth in a way that RETAINS VILLAGE CHARACTER (capitals ours), enhances a sense of community, limits the spread of urban development and minimises damage to environmental values and rural production.
- support the development of noncoastal centres
…..
- ensure the NEW DEVELOPMENT REFLECTS AND ENHANCES THE CHARACTER OF THE SETTLEMENT IN WHICH IT IS LOCATED and is based on the best practice urban design principles

p.11 The Strategy at a Glance
- limit development in places constrained by coastal processes, flooding, wetlands, important farmland and landscapes of high scenic, cultural and conservation value like Hastings Point

- protect the coast from overdevelopment by identifying a coastal area (generally east of the Pacific Hwy) and including Tweed Heads urban areas which limits the spread of urban development by reducing additional future housing within this area from around 75% to around 60%

- encourage the growth of non coastal towns and villages….. i.e. not coastal villages like Hastings Point

Regional Centres
Towns
- the major towns of Murwillumbah, and Casino and towns of Mullumbimby, Byron Bay, and Kyogle support the major regional centres the communities provide a FOCUS FOR SOME FUTURE URBAN DEVELOPMENT within their service catchments.

Villages
Surrounding the larger centres are a number of villages…… (HP is one of the smallest) These provide highly diverse lifestyles and a sense of community reinforcing the Far Nth Coast as a ’Region of Villages’

…
The Strategy reinforces and promotes increased housing choice by directing future URBAN growth to appropriate locations across the region. Higher density living is to be encouraged around the TOWN CENTRES and areas of major employment. (distinguished from small sensitive coastal hamlets like Hastings Point)

p 27
The Strategy plans to use land allocated for URBAN development WITHOUT SACRIFICING THE IDENTITY OF THE AREA.

p 29
Actions
LEP’s Local growth management strategies and other statutory planning controls WILL align with the Regional Strategy’s settlement network (as shown on the housing maps) to contain the spread of urban development, efficiently utilise existing services and infrastructure and protect areas of high conservation value (Note: this includes sensitive estuaries)

Local environmental plans will ensure that all new development reinforces existing urban and rural centres, towns and villages

New development must be located in a manner that prevents ribbon or stripdevelopment along MAJOR Roads and does not impact on the safety and efficiency of arterial roads. If Council and developers continue with the size and scale of buildings they have been approving and proposing for HP, the development strip along Coast Road will be like no other in the Tweed Shire area given the narrow strip of sand between the Ocean and Estuary – less than 200m in parts.  See arial shot of Coast Road.

p. 31 Settlement Character and Design
The region’s towns and villages have developed in response to its unique natural and cultural environment. (very much so for HP) The design and character of these settlements, which provide for housing, employment and recreational opportunities and a range of associated services and facilities influence how individuals and communities interact and contribute to the
place’s identity. (this includes the community, the environment and all those visitors that appreciate HP for its unique natural health & beauty)

Providing guidelines to maintain this identity to maintain appropriate design standards are applied will result in high quality development that is RESPONSIVE to the region’s climate, landscape and character.

…
This evolution SHOULD NOT BE AT THE EXPENSE OF THE UNDERLYING COASTAL VALUES OF THE REGION and should HELP to define and enhance those values by offering greater opportunities to preserve and protect important
and environmental landscapes. INCREASED DENSITIES WITHIN KEY CENTRES AND TOWNS WILL HELP TO ACHIEVE THOSE GOALS. (Note- clearly distinguishing that this principal of increased density should not apply in the sensitive coastal villages!)
With a careful design approach there is the potential for council to consider higher densities and review their height limits in the MAJOR REGIONAL CENTRES

Action
Councils should prepare desired character statements for their localities that include provision (through a DCP) to ensure that NEW DEVELOPMENT ENHANCES THE DESIRED CHARACTER. HP has begged for its locality statement for years, providing Council with drafts on numerous occasions. While implementing in all other localities, HP gets shunned – WHY?

New development should be designed to reflect and enhance the natural, visual and BUILT CHARACTER AND VALUES of the local and regional landscape.

NOTES
One of the major contentions of Council is that the developments proposed for HP are consistent with Far North Coast Strategy & Policy and to reduce urban sprawl by creating more dense areas. However, from the above, it is clear as a bell that this policy directive is directed to towns and new non-coastal urban areas – NOT unique, undeveloped coastal villages like HP.

The 1997 NSW Coastal Policy

The 1997 coastal Policy recognises that the community wants assurances that governments can accomodate the competing demands of environmental protection and conservation and population growth and economic development in a responsible, sustainable and systematic way.

An Ecologlically Sustainable Coast – Conservation of biological diversity and ecological integrity.  This refers to the need to conserve the variety of all life forms, especially the variety of species, and to ensure that the productivity, stablity and resilience of ecosystems is mainained. (This is a major issue of the community and sensitive esturial environment and ecology of HP)

Water quality impacts are also brought into sharp focus in the coastal zone due to the rapid population growth and direct contact between the land and aquatic environments. (This is particularly so for HP which is an extremely small stretch of land which sits between ocean and a delicate estuary and environmentally protected mangroves, wetlands and littoral rainforest)

In 2.3 – Key Actions – it states: “Ribbon development, unregulated cluster development, continuous urban areas and other inappropriate housing developments on the coast will be discouraged. Coast Road classic example of Ribbon Development.

Local Councils will be required to make new local environmental plans consistent with the Coastal Policy and to adopt planning and development controls specified in that policy where appropriate.

State Government agencies, when preparing policies, programs and procedures for coastal zone planning and management, will be required to ensure they are consistent with the Coastal Policy and have regard for national and international strategies, policies and agreements.

Local communities and their councils will be encouraged to work with government agencies in caring for the coast through a range of progams. (HP Community asks Tweed Council to work with them, not against them, to care for this sensitive coastal location NOT destroy it)

The policy has been extend to include coastal estuaries, lakes, lagoons, islands and rivers in recognition of the strong connection between coastal estuarine processes and the processes of the littoral coastal zone.

Implementation

To be effective, the policy needs to be implemented by both State  and local government and the community.  (LEP 81 was consistent with this policy as stated by Council and NSW Department of Planning.  Council wanted to implement it last year, the NSW Department of Planning recommended it this year and the Community and Environment of HP have requested it for years – It is time now to ACT.)

Enforcement

..the Coastal Council will monitor and review implementation of the Coastal Policy and report on this through its annual report.

.. A range of mechanisms exist to remedy non-compliance with the Coastal Policy, including the ability to “call-in” development proposals under section 101 of thee EP&A Act for determination by the Minister for Urban Affairs and Planning  …  It is time for Tweed Council to act appropriately OR for State Government to call this overdevelopment in  before the locality and environment are destroyed.  The development strip, increased impact and pressure on this sensitive coastal location is totally at odds with NSW Coastal Policy.

Coastal Design Guidelines for NSW 2003

Council continues to misrepresent its own planning guidelines by stating that it has no option but to approve dense 3 storey residential flat buildings despite its adoption of the Coastal Design Guidelines (CDG) to supplement existing planning controls and to apply as part of its Planning Reform Program.

It ignores Coastal Policy and the advices relating to Coastal Policy from the Director General of the NSW Department of Planning.

Council’s stating that the desired future character of Hastings Point is 3 storey residential flat buildings by relying solely on the fact that the locality has a 3 storey height limit and is zoned 2b (medium density) is irresponsible and a misapplication of its own law and State law and policy.

The CDG were prepared with reference to the NSW Government’s Coastal Policy 1997 and compliment the Government’s Coastal Protection Package of 26 June 2001 and SEPP 71 which came into effect in November 2002. The Guidelines provide a framework for future planning and specific guidance in relation to seven settlements types identified, which include coastal villages and hamlets.

CDG outline aspects which must at a minimum be considered when determining the desired future character of a place and it is certainly not restricted to a zoning height limit and density.

Applying the definitions of settlement types contained within the CDG, Hastings Point is most accurately defined as a coastal hamlet. Hastings Point although having a population of around 650 fulfils all the indicia identified in the CDG for a coastal hamlet.

The CDG makes specific reference to the desired future character of coastal hamlets. In particular, it states:

• The natural environment dominates individual buildings and the settlement as a whole;
• Large scale residential, retail, commercial and tourist developments are avoided.
• Large developments in prominent locations in or surrounding the settlement or along the main access road are avoided.
• Buildings are sensitive in scale to existing buildings and include detached and semi-detached residential dwellings, coastal cottages and bed and breakfast accommodation.
• Heights of up to two storeys are maintained throughout the settlement.

None of the 3 storey residential flat buildings proposed along the fragile Cudgera Creek estuary and main Coast Road satisfy any of these character requirements.

Council failed to apply CDG at all in the two DA’s before the L&E Court and its misapplication and dishonest interpretation of the provisions with recent DA approvals is deplorable and must be addressed.

Again, Tweed Shire Council approved these development despite a moratorium and without waiting for L&E Court’s determination of these very issues – judgment pending. This was completely unreasonable, oppressive and a breach of community trust.

Tweed Futures – Issues Paper – Review of Tweed Shire 2000+ Strategic Plan

Desired Future Character – pp 36 and 37

To provide and enhance urban design of the built environment of the Tweed it is essential to be guided by a comprehension of the desired future character of the area.

The needs to be provided at Shire level and all levels down to individual places. To do this prior to embarking on a urban design exercise, principle control statements for each locality should be completed providing a vision for the future of the area.
……
The Shire’s villages possess distinct qualities and individual locality-based issues. These pressures demand a different planning approach to be implemented. Given the specific issues affecting the Shire’s framework towards locality/catchment based planning and the pursuit of sustainable development it is contended that locality plans are prepared for the Shire’s villages.

Options to achieve this include:

• Prepare individual local plans as resources permit covering more than land use issues. This would require prioritization of plan preparation plus an overall framework.
• Given the number of villages throughout the shire, and the limited Council resources available, a framework should establish to prepare locality plans for villages as funds and resources are made available.
• Empower village communities to prepare their own plans in conjunction with a planning facilitator that provides technical and professional advice. Council, your policy says to work with us – not against us – please do so immediately!!!
• Generic plan for all villages

Challenge for Tweed Heads
The Shire’s rural villages and townships are valuable resources that now command a specific locality-based approach to planning. You Tweed Shire Regional LEP does not protect us, we need a Locality Plan.  HP is a small rural, coastal village – not an extension of the Gold Coast.

North Coast Regional Environmental Plan

15 – Development control – wetlands or fishery habitats

The council shall not consent to an application to carry out development for any purpose within, adjoining or upstream of a river or stream, coastal or inland wetland or fishery habitat area or within the drainage catchment of river or stream, coastal or inland wetland or fishery habitat area unless it has considered the following matters:

(a) the need to maintain or improve the quality or quantity of flows of water to the wetland or habitat;
(b) the need to conserve the existing amateur and commercial fisheries;
(c) any loss of habitat which will or is likely to be caused by the carrying out of the development;
(d) whether an adequate public foreshore reserve is available and whether there is adequate public access to that reserve;
(e) whether the development would result in pollution of the wetland or estuary and any measures to eliminate pollution;
(f) the proximity of aquatic reserves dedicated under the Fisheries Management Act 1994 and the effect the development will have on these reserves’
(g) whether the watercourse is an area of protected land as defined in section 21AB of the Soil Conservation Act 1938 and any measures to prevent soil erosion, and
(h) the need to ensure that native vegetation surrounding the wetland or fishery habitat area is conserved, and
(i) the recommendations of any environmental audit or water quality study prepared by the Department of Water Resources or the Environment Protection Authority and relating to the river, stream, area or catchment.

30 – Objectives

The objectives of this plan in relation to coastal planning are:

(a) to enhance the visual quality of the coastal environment;
(b) to provide for the appropriate recreational use of beaches;
(c) to protect the water quality of the coastal environment;
(d) to minimise risks to people and property resulting from coastal processes;
(e) to minimise changes to coastal processes resulting from development, and
(f) to encourage retention of natural areas and regeneration of those natural area which are already degraded.