Community uproar as construction certificate to be granted for decades old ‘Zombie’ DA

South West Rocks residents Jann Thomas, Karen Thomas and Anthony Field voice their displeasure at the Land and Environment Court decision.

DOZENS of outraged community members lined the footpath of Phillip Drive, South West Rocks on Monday, protesting a NSW Land and Environment Court decision to grant a construction certificate to a 30 year old development application.

The Phillip Drive site has sat untouched for decades, amongst sensitive coastal wetlands, and is home to an array of endangered native wildlife.

A development consent was lodged for a tourist resort on the site (Lot 2 DP1091323) with Kempsey Shire Council in 1991.

It was approved in 1993.

In late 2021, Rise Projects submitted an application to Council for a construction certificate to commence works on the site based on that 1993 approval.

Council did not issue a Construction Certificate on the basis that the developer did not adequately demonstrate they had substantially commenced work within the required five year timeframe of the 1993 development consent approval.

The developer filed an appeal against this deemed refusal in the Land and Environment Court and the case was heard in December 2021.

The Land and Environment Court ruling, published on 1 March 2022, found in Council’s favour, declaring that the consent had lapsed and the application for a construction certificate be refused.

The developers then appealed that decision in late March 2022.

This was heard in court in December 2022.

That court ruling, published on Wednesday 22 March 2023, overturned the March 2022 ruling, requiring Council to now issue a construction certificate for the 2021 application.

Council were also ordered to pay costs.

The Land and Environment Court found that acid sulphate testing completed by the site’s former owner in 1994 and 1995 constituted ‘engineering work’ and as such meant that construction work had begun within five years of the original development consent.

Rise Projects plan to clear 4.8 hectares of the wetland site for a mixed-use residential development called ‘The Rocks’, which includes 30 townhouses, 26 apartments, communal amenities, shops and cafés.

Voices of South West Rocks Community Inc, a community group formed to garner resistance to ‘inappropriate development’ facing the town, is outraged by the Court’s decision, and say such developments threaten the seaside village’s unique natural and cultural values and endangered wildlife.

“Voices of South West Rocks Community Inc (VoSWRC) is disappointed to see the decision by the Land and Environment Court (LEC) this week,” group spokesperson Larah Kennedy said.

“In March 2022 the LEC agreed that Development Consent on Phillip Drive (Lot 2 DP1091323) had lapsed.

“Overturning the decision will have catastrophic impacts on the habitat on that site, which is inclusive of koala fo
od trees and swift parrot breeding hollows.

“Under court ruling, council must issue a Construction Certificate by 29 March, which means there is a possibility that habitat clearing at the site will start as soon as next week.

“VoSWRC acknowledges the effort put in by Kempsey Shire Council to try to protect the sensitive ecology of the site, including Saltwater Creek.”

Monday’s gathering aimed to send a message to Local, State and Federal Government that residents want greater protection of wildlife habitat through strengthened planning and environment laws.

“This ruling sets a dangerous precedent and further erodes the authority of local government when it comes to development controls and protecting coastal environments.

“South West Rocks is experiencing widespread unsustainable development that is impacting wildlife, our natural and cultural values and the well-being of our community,” Kennedy said.

Craig Milburn, Kempsey Shire Council General Manager, said the Court’s decision was disappointing and highlighted the need for changes to planning laws.

“We understand that many in the community are frustrated by the tree clearing in South West Rocks being permitted under very old ‘zombie’ DAs,” said Mr Milburn.

“Our Councillors have been vocal alongside Local Government NSW that the state government needs to amend the NSW Planning laws.

“Currently these zombie DAs are a burden to all councils.

“There should be a five year period for development consent approvals when construction works must be substantially completed.

“Where works are not substantially completed, the consent should lapse and a new development application made and assessed on its merits.”

In April 2022, Rise Projects Director Mr Pszczonka said ‘The Rocks’ development would create ‘a coastal village that complements the ecological surrounds of South West Rocks’.

“We aim to deliver a high quality, architecturally designed residential coastal village with functional, stylish housing options and local neighbourhood amenity,” Mr Pszczonka said.

Angst has been building in the South West Rocks community over the development for the past several years, with developers completing vegetation clearing and slashing on site, as well as installing signage and perimeter fencing without Council approval.


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