In November 2023, the Northern Revised Planning Panel unanimously refused Gemlife's DA, however before this could happen (and most likely anticipating it would), Gemlife commenced proceedings against Council in the Land and Environment Court for "deemed refusal" of the DA (Note: the current planning system allows developers to take Council to court if they fail to determine a DA within 40 days, some developers often opt for this pathway to get a faster outcome).
On 1st December, the NSW State Government Department of Planning and Environment advised Council that it had applied a C2 Zone to this site at Council's request. This decision had been resolved by Council in July 2023 but had been on hold because the landowner had requested a statutory review.
This large parcel of land (shown below) lies opposite Burns Point Ferry Road in West Ballina and for decades the landowner has been trying to realise its development potential for residential housing.
The site was previously zoned "rural" under the old 1987 Local Environment Plan, and if it wasn't for a landowner initiated re-zoning propsal in the mid 2010's it would have been part of the Conservation Zone Review - however in 2018 the former Council resolved to re-zone the northern part of the site as R2 (low-density residential) and the southern part of the site as RU2 (rural landscape). This decision was despite the environmental values of the land being well documented through multiple ecological studies. At that December 2018 an ammendment was made to discontinue to re-zoning proposal, but it was ultimately lost 4:6 (see below).
Immediately following the re-zoning decision, billion-dollar developer Gemlife submitted a Development Application to build a 300 dwelling housing development on the northern part of the site. They commenced proceedings in the Land and Environment Court, which, in 2021, refused the development application citing serious and irreversible impacts on endangered ecological communities and threatened species habitat.
Cheif Justice Preston concluded that the entire site, which is known to be a matrix of three types endangered ecological communities and home to a number of threatened and endangered species, including several varieties of micro-bats and countless birds species, was unsuitable for urban development.
In March 2022, when the Northern Rivers Floods hit, this site was several metres under water, which saw the residents of Burns Point Ferry Road evacuated from their homes.
In October 2022, a newly elected Council decided to re-zone the site to C2 (Environmental Protection) to prevent future residential development, but in January 2023 Gemlife submitted a revised DA for 174 seniors homes (see image below).
Despite receiving 42 public submissions supporting the C2 zone, at their June 2023 meeting, Council backtracked and decided to defer a decision on the re-zoning, a decision which was subsequently overturned the following month due to backlash from the community. Council finalised the C2 Zone for this site in July 2023 and in November 2023 the new zone was applied by the NSW State Government.
Because Gemlife submitted a revised DA before Council could make a decision on the C2 zone, they were awarded a legal "savings provision" by the Department of Planning and Environment, which meant that the revised (and current) DA would be determined as per the site's current R2 zoning. The consent authority for the DA was the Northern Rivers Planning Panel (not Council).
The Land and Environment Court case is expected to be long and expensive, with an outcome not expected until the end of 2024. It is standard practice for developers to submit multiple revisions to their DA during the court case to respond to issues raised, which is a waste of time and money for Councils.
Council has already spent well over $500,000 is legal fees defending this case and will spend about $1 million by the time it is concluded. This is the high cost of poor environmental decision making
Whether or not the Department of Planning agree to re-zone the site as C2 remains to be seen. While it wont affect the outcome of this case, it will prevent Gemlife from lodging another DA if it is refused.
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