KEMPSEY Shire Council (KSC) will not appeal a recent decision by the NSW Land and Environment Court (LEC) requiring Council to provide a construction certificate to Rise Projects for a 30-year-old development application in South West Rocks.

The construction certificate, for a planned development at Lot 2 Phillip Drive, South West Rocks (Lot 2 DP1091323), has been approved on appeal by the LEC after Council and the LEC originally denied the developers a construction certificate, arguing that the original development consent, issued in 1993, had lapsed.

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At an Extraordinary Meeting of Council on Thursday 6 April, Councillors faced the challenging task of weighing financial, reputational and chance-of-success factors in deciding whether to appeal and further pursue the Rise Development case in court.

During the public forum, South West Rocks community members Larah Kennedy and Warren Bailey addressed Councillors and outlined their concerns on the matter.

Council moved to a confidential session to allow for a full briefing on the matter before they engaged in a thorough and rigorous discussion of the available options, leaving more than 30 concerned local residents in the Council’s courtyard awaiting the outcome.

The motion to not pursue a further appeal in the matter of 2 Phillip Rise Development Pty Ltd v Kempsey Shire Council [2023] NSWLEC 28 was moved by Cr Bain and seconded by Cr Patterson on the grounds of unacceptable financial and reputational risk.

The motion was put to the vote and carried with one dissension.

Leo Hauville, Mayor of Kempsey Shire Council said, “It is with reluctance that Council has chosen not to appeal.

“It’s frustrating to know that this site is being developed based on a 1993 development application and that Council has been forced to approve these works and to comply with the 1993 environmental regulations.

“Unfortunately, proceeding with an appeal would have very little chance of success and represent an unjustifiable financial risk given it would cost ratepayers hundreds of thousands of dollars.”

Councillors acknowledged and praised the community sentiment and passion regarding the development and thanked Council’s operational staff for their work on the matter.

On Monday, the developer committed to the court that some areas of the site with the highest ecological values would be protected while the Council considered its options.

Rise Projects began clearing the unprotected area on 6 April, and from 19 April will have consent to clear-fell the rest of the site.

“I appeal to the developer to show genuine consideration to the environment and make a commitment to protect the wildlife that thrives at the site,” said Mayor Hauville.

The Rise Development site on Phillip Drive has been left untouched in decades and is considered a ‘zombie DA’.

Outdated DAs such as this have caused considerable consternation across the Mid North Coast, allowing developers to progress development plans using outdated environmental planning policies.

The construction certificate now granted relates to a 1993 development application to build 180 units on the site.

The Phillip Drive development is situated amongst sensitive coastal wetlands, and creek frontage, and is the home of a diverse collection of endangered wildlife, koala food trees, and animal foraging habitat.

Larah Kennedy, spokesperson for the Voices of South West Rocks Community (VOSWRC) group, said the community remains steadfastly against the Rise Development going ahead.

“The community made it clear 30 years ago when the DA was first submitted, and we’ve made it clear again in the last few years with the more recent DA for the site on Phillip Drive.”

“Rise development has no social licence,” Ms Kennedy said.

“At no point have Rise Projects tried to consult with the community or the local Dunghutti custodians on this issue.

“In fact, if anything they have ignored our questions and removed our comments from social media.”

Ms Kennedy said at least six listed threatened species are present on site.

Current planning and environmental laws state that in the first instance environmental harm should be avoided.

“Rise has mentioned they will plant more koala food trees, resulting in a net gain, but koalas will not be able to use those trees for 20-30 years by which point the NSW Government anticipates koalas will likely be extinct in NSW,” she said.

South West Rocks resident Warren Bailey, in his address to Council, pointed out the majority of employment and economic strength of South West Rocks is derived from tourism based on the natural beauty and sense of place of this coastal village.

“This makes South West Rocks a substantial asset to the Kempsey Shire Council as a whole, and as an asset creates a greater wealth spreading from coast to hinterland,” said Mr Bailey.

“There would seem an economic imperative for saving the environment (specifically the Macleay), and the inappropriate use of old outdated DA controls should be avoided, hence the importance of council’s support in appealing this ruling.”

Councillor Alexandra Wyatt, the only Councillor to speak against the motion, put the question to Council’s General Manager Craig Milburn, ‘Where would the liability sit when, if in the next 30 years the area floods due to projected coastal inundation as seen in other areas along our coast?’.

Mr Milburn replied that all of Phillip Drive was included in the coastal inundation projections and this would be a future responsibility to be taken up with Council’s insurance agents.

By Karen GRIBBIN