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“Heritage Estates” Rezoning Investigations |
This “paper subdivision” is made up of approximately 1,200 lots in Deposited Plans 8590, 8591, 8770, 8771 and 8772 within the locality of Worrowing Heights.
Henry F. Halloran originally subdivided the land in 1915 as part of his vision for St. Vincent and Pacific Cities. The Deposited Plans that make up the Heritage Estates were registered in 1915/1916. The subdivision and registration occurred under the relevant legislation of the day.
The subdivision was never actually implemented and remained unzoned until 1964. Under the City’s first planning controls, the Interim Development Order, which came into affect in 1964 the land, was given a “Rural” zoning. This zoning essentially prohibited the individual lots in the subdivision being built on. Under the Shoalhaven Local Environmental Plan (LEP) 1985, the land is currently zoned Rural 1(d) and Rural 1(b). These zones also do not enable the individual lots within the subdivision to be built on.
The subdivision was largely retained in large ownerships until the late 1980’s and early 1990’s when they were sold off to individuals. As a result the 1,200 lots are now held in approximately 1,100 ownerships.
Following requests from landowners Council resolved in 1992 to investigate the possible rezoning of the subdivision to enable dwellings to be erected on the individual lots. Following this resolution an environmental study and other detailed investigations were prepared and this culminated in 1999 with the State Government convening a Commission of Inquiry (CoI) into the proposed rezoning.
The CoI held under Commissioner Kevin Cleland, Deputy Chairman was finalised in August 1999 and made 12 recommendations. These recommendations are detailed on the attached diagram.
Further information on the CoI and its outcomes are available at:
The CoI recommendations included the need to consider the matter in the overall Settlement Strategy for the Jervis Bay Region. The Jervis Bay Settlement Strategy (JBSS) was completed by Council and endorsed by the State Government during 2003.
The JBSS indicates that the area will be investigated for future rezoning to enable residential development in accordance with the CoI recommendations.
The JBSS can be viewed on Council’s Internet site at:
http://www.shoalhaven.nsw.gov.au/council/pubdocs/JBSettlementStrategy.pdf (PDF file 6.1Mb requires Adobe Acrobat Reader)
Following the release of the Jervis Bay Settlement Strategy a “Scoping Study” (PDF file 787Kb requires Adobe Acrobat Reader. Does not include certain figures and annexure's.) was prepared for the project that outlines the range of tasks and costs associated with progressing the rezoning investigations. The findings of this Study were considered by Council during February 2004 and it was resolved that
Council proceed with
Stage 1 (rezoning investigations) only for the Heritage Estates and if
successful leave the development application and construction stages to be
negotiated by the Landowners.
The cost of the Stage 1 rezoning investigations of the Heritage Estates be ultimately recouped by way of a special rate to be applied to rateable properties in the rezoned area.
Following on from this resolution Council included funding of $350,000 in its 2004/2005 Management Plan to advance the rezoning investigations. This funding has been used to employ a dedicated project officer to oversee the detailed investigations (eg. flora/fauna, bushfire, stormwater etc) associated with the proposed rezoning and fund the required detailed investigations that were outlined in the “Scoping Study”.
In March 2006 Shoalhaven City Council made an application to the Minister for Local Government for a Special Variation for an above the normal rate pegging increase commencing in 2006/07 to allow Council to fund the rezoning investigations into the Heritage Estates.
Council’s application to the Minister for Local Government for a Special Variation for an above the normal rate pegging increase commencing in 2006/07 was approved. The special rates have been incorporated into the Management Plan 2006-09.
With respect to Heritage Estates, Council on Friday, 14th July resolved:
“In accordance with Section 538, a special rate, consisting of an Ad Valorem Rate, of zero point two nine eight two six cents (0.29826c) in the dollar in addition to a base amount of fifty two dollars and eighty nine cents ($52.89c) be made for costs associated with the heritage rezoning investigations. In accordance with Section 495 (1) the special rate is to be levied on all rateable properties within the Heritage Estate as shown on a map made available for display at Council’s Administrative Offices located at Nowra and Ulladulla during the period 3 May 2006 to 1 June 2006, which in the opinion of Council will derive special benefit from the rezoning and is subject to this rate in accordance with Section 495 (2) (a) (b) and (c). The special rate BE NOW MADE FOR THE PERIOD 1 JULY 2006 TO 30 JUNE 2007 and in accordance with Section 543 (2) this rate be named “HERITAGE REZONING SPECIAL RATE”. Further, to comply with Section 500 of the Act, the total amount payable by the levying of the base amount of fifty two dollars and eighty nine cents ($52.89c) per rateable assessment for the “HERITAGE REZONING SPECIAL RATE” and will produce fifty (50%) percentum of the total amount payable by the levying of the “HERITAGE REZONING SPECIAL RATE” in accordance with Section 537 (b).”
Properties which will attract special rates will now be reviewed annually.
A work program for the re-zoning investigations was prepared detailing three major stages:
Stage 1 –
Strategic Analysis
Stage 2 – Economic Feasibility and Secondary Studies
Stage 3 – Implementation Process
Follow the links below to find out how each of these studies has progressed
o What is the relevant legislation?
o What were the findings of the recent biodiversity survey?
o Referral to the Department of the Environment and Water Resources (DEW) under the EPBC Act
o NSW threatened species issues
· Cultural Heritage (Aboriginal and European)
The Environmental Planning and Assessment Act, 1979 (EPA Act) requires that a draft local environmental plan that proposes to change the zoning of rural land must be supported by an environmental study or detailed environmental assessment. As part of the current investigations, Council has commissioned several strategic studies which will provide important components of the eventual study. One of these background studies is a Threatened Biodiversity Survey and Assessment.
For the purpose of this Survey, Council must take into consideration the provisions of:
· Threatened Species Conservation Act, 1995 (TSC Act) (administered by NSW Department of Environment and Climate Change (DECC); and
· Environment Protection & Biodiversity Conservation Act, 1999 (EPBC Act) (administered by the Commonwealth Department of Environment & Heritage and Water Resources).
In addition, under Sections 34A of the Environmental Planning and Assessment Act, 1979 (EP&A Act) Council must consult with the NSW Director General of National Parks and Wildlife before preparing an environmental study, or a draft local environmental plan, if critical habitat or threatened species, populations or ecological communities, or their habitats, will or may be affected by the environmental study or draft plan.
The presence of three threatened species on the land at Worrowing Heights had been established by previous studies.
Threatened species studies undertaken in 1993 and 1995 confirmed the presence of three endangered fauna species. These were Yellow-Bellied Glider, Common Bent-wing Bat and Glossy Black Cockatoo. This information was provided to the Commission of Inquiry (COI) in 1999 which focused on the conservation of forest and habitat corridors for the protection of these species.
Since the COI there have been significant amendments to the TSC Act. These amendments include the listing of additional species as threatened and changes to the manner in which significance is assessed. Specifically, there is now a requirement to take into account local rather than regional occurrences of threatened species, endangered populations and endangered ecological communities (EECs).
In addition, the Commonwealth Environment Protection and Biodiversity Conservation Act came into effect in 2000. The matters protected by the EPBC Act that are of relevance to the land at Worrowing Heights are:
Matters of national environmental significance including:
Listed threatened species and ecological communities; and
Migratory species; and
The environment of Commonwealth land (Booderee National Park).
The EPBC Act requirements are in addition to relevant NSW State Government requirements.
The recent biodiversity study findings, in summary, were:
Threatened Species Conservation Act (NSW):
3 threatened flora species
1 Endangered Ecological Community
17 threatened fauna species
Environment Protection and Biodiversity Conservation Act (Commonwealth)
2 flora species
2 fauna species
5 migratory species
Other
4 ROTAP (Rare or Threatened Australian Plants) flora species + 19 other significant species. ROTAP species are those listed by the CSIRO. Some ROTAP species are already protected under the TSC Act and EPBC Act. ROTAP species that do not yet have statutory protection under the legislation are matters for consideration in the assessment of development applications.
All flora and fauna consultants working in NSW are licensed by the NSW Department of Environment and Climate Change (DECC) in order to carry out their work. As a condition of the license agreement all threatened flora and fauna records collected must be provided to DECC and this will occur as part of the consultant’s regular provision of records to DECC.
Following receipt of the draft report, a briefing of Council took place on 20th September 2006. At that meeting, Councillors were provided with a number of options to progress the rezoning investigations and it was decided, given the significance of the issues at hand, that a meeting would be requested with the Minister for Planning, the Hon Mr Frank Sartor, MP and the former Minister for the Environment, the Hon Mr Bob Debus, MP and their respective heads of department. This meeting took place on 23rd November 2006, with the Mayor, Clr Greg Watson, the General Manager, Mr Russ Pigg and Director Strategic Planning, Mr Ernie Royston representing Council.
It was decided to establish a Working party to consider options for the future development of the land. The Working Party included representatives from Council and DECC. The first meeting of the Working Party took place on 15th December 2006. The Working Party was convened to consider options and opportunities having regard to the findings of the biodiversity assessment, bushfire, social and economic issues.
The second meeting of the Working Party was held in Canberra on 24th January 2007. The purpose of the meeting was to meet with the Department of the Environment and Water Resources (DEW) to discuss matters relevant to the study area, that are protected under the Environment Protection & Biodiversity Conservation Act, 1999 (EPBC Act).
Correspondence from the DEW dated 22 March 2007 advised:
It would be in the best interests of all parties to make a referral under the EPBC Act, as soon as possible.
No further flora or fauna surveys are needed to complete a formal referral.
It is likely that the project will be deemed to be a "controlled action" under the EPBC Act.
The EPBC referral documentation comprising the referral form, the Biodiversity Survey and Assessment prepared by Bushfire & Environmental Services Pty Ltd (BES) and other attachments was received by the EPBC Referrals Section of DEW on 9 May. In the referral form, Council advised that the biodiversity assessment had not at that stage been released to the public and was regarded as sensitive information, and therefore requested that the document be treated accordingly.
Council received correspondence dated 11 May 2007 acknowledging receipt of the referral and advising of a public consultation period extending for 10 working days. The referral form completed by Council was placed on the EPBC referral website. At this stage logistically there was insufficient time to formally advise all of the 1,100 Heritage Estates landowners. However, the Shoalhaven Landowners Association was advised. Previously, a letter dated 17 April 2007, had been sent to landowners within the rezoning investigation areas advising that a referral would be made in the near future.
Information on the Heritage Estates EPBC referral is available at DEW’s website at:
http://www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_referral_detail&proposal_id=3448
On 22 June 2007, the delegate for the Minister for the Environment and Water Resources determined that the proposal is a “controlled action” (that is, the proposal is likely to have a significant impact on matters protected by the EPBC Act). This means that if the proposed rezoning and development is to proceed, Council (as the proponent) will require the approval of the Commonwealth Minister for Environment and Water Resources under the EPBC Act.
The Minister’s delegate also determined that the proposal will need to be assessed via a Public Environment Report (PER). The PER and the EPBC decision-making process involves a number of steps including the following:
Minister provides guidelines detailing matters to be addressed in the PER
Council prepares the draft PER in accordance with the guidelines
Minister approves publication of the PER
Council releases the draft PER for public comment (min. 20 business days)
Council addresses any public comments
Council publishes the final PER
DEW prepare a Recommendation Report for the Minister’s decision (max. 40 business days)
Given the timeframes involved in the individual steps of the PER process and the need to optimise opportunities for public comment, Council staff will endeavour to complete the draft PER for it to be placed on public exhibition by late January or February, 2008. Staff will advise landowners in a timely manner to allow sufficient time for them to view and comment on the draft PER. Based on the draft PER being exhibited at this time, DEW estimate is that a decision on the EPBC assessment could be expected by mid 2008.
At the completion of the EPBC assessment process, the Minister for the Environment and Water Resources may do one of the following:
Approve the proposal
Approve the proposal subject to constraints
Not approve the proposal
Council is obliged under s.34A(2) of the EP&A Act to consult with the NSW Director General of National Parks in relation to matters listed under the Threatened Species Conservation Act 1995 (TSC Act). Accordingly, formal comment has been requested from DECC under s.34A of the Environmental Planning and Assessment Act, 1979 (EP&A Act). Correspondence from DECC may then be referred to the Department of Planning for comment.
The Heritage Estates is bushfire prone land as certified by the Commissioner of the NSW Rural Fire Service (RFS) for the area of the Shoalhaven City Council. Rezoning of the Estate requires support from the RFS (Section 117 of the Environmental Planning and Assessment Act, 1979 and Ministerial Direction 19 – Planning for Bushfire Protection) and any subsequent residential development will need to comply with the specifications and requirements detailed within the RFS (2001) document Planning for Bush Fire Protection, 2006 which was gazetted in March 2007.
A Bushfire Assessment was completed in March 2006, based on Planning for Bushfire Protection 2001. As this document has now been superseded, the Bushfire Assessment will need to be reviewed should approval be given by the Commonwealth under the EPBC Act (if required).
Council commenced a surface water monitoring program in February 2006 to provide background water quality and flow data as recommended by the COI. Water sampling of surface runoff in the flow lines was not able to be undertaken until substantial rainfall finally occurred in late May 2006.
Rainfall from late May through to July 2006 enabled more than 100 samples to be collected, providing data that would be needed for modelling water quality impacts and stormwater design.
Hydrogeological, acid sulfate soils and preliminary land contamination assessments are now complete. Acid sulfate soils were not found in the investigation areas. No further land contamination investigations will be necessary. Other findings and recommendations relating to drainage and erosion control etc. will be considered in constraints mapping when other studies are finalised.
An Aboriginal and European Cultural Heritage Assessment was completed in 2006. The findings of the report are consistent with the Preliminary Archaeological Investigation of Heritage Estates Subdivision near Old Erowal Bay, NSW prepared on behalf of Shoalhaven City Council by Tim Stone in November, 1995. A European archaeological and heritage assessment was also carried out as part of the study.
Advice was received from DECC in December 2006, that there remain outstanding matters to be resolved regarding the Aboriginal Heritage Assessment. DECC advised that, at this time, these matters are considered to be secondary to the biodiversity and planning matters being reviewed by the Working Party referred to above. DECC also advised that action on the Aboriginal Heritage Assessment should be suspended pending the outcomes of the Working Party into threatened biodiversity issues and the future planning direction for the Heritage Estates.
Council has received advice from the Heritage Council of New South Wales that the recommendations of the Worrowing Heights Cultural Heritage Assessment are noted and supported. Council was also advised that the rezoning investigations and planning framework should reflect the recommendations made and that, once prepared, the draft LEP should be referred to the Heritage Office for further comment at that time.
On 31st March, 2006 all named and unnamed roads within the Heritage Estates constituted in DPs 8770, 8771, 8772, 8590 and 8591 were dedicated as public roads by notice published in the NSW Government Gazette.
In May, Council commissioned an Airborne Laser Scanning Survey of the Heritage, Jerberra, Nebraska and Verons Estates, and Goodland Road (Woollamia).
This survey (completed in July 2006) has provided detailed digital elevation data and contour maps for the purpose of constraints mapping, road and drainage design.
Council’s advice to landowners is that no further clearing, slashing, mowing or “maintenance” of land should be undertaken without an appropriate approval from Council until the rezoning investigations have been advanced and the rezoning status of all land in the Estate has been determined. This advice is considered to be in the best long term interests of landowners.
At a meeting of landowners on 6th March 2006, Council staff were asked to provide information as to when landowners could resume these activities. Due to the complexity of existing and new controls applying to the clearing of vegetation in NSW, an undertaking was given that a response would be provided on Council’s Internet site. This advice can be viewed in full at:
http://shoalhaven.nsw.gov.au/council/pubdocs/communityissues/Heritage/Clearing Internet.pdf
In summary the advice states that:
There is no legal ability for land in the Heritage Estates to be cleared, slashed or mowed without development consent. As development consent has always been required, the question of existing or continuing use rights does not arise. Removal of vegetation within Heritage Estates would most likely require development consent from the Southern Rivers Catchment Management Authority as well as Council.
In the circumstances, land owners are advised to refrain from carrying out further clearing, slashing or mowing activities on their land without first having discussed the need for formal approval to undertake such work with Council’s Development & Environmental Services Group.
The resumption of clearing, slashing, mowing and maintenance activities resulting in the removal of vegetation has the potential to undermine the rezoning investigations and delay completion of the project.
The above information is not legal advice. It represents Council’s current understanding of the planning controls and legislation applying to the Estate based on detailed research carried out by Council staff.
Any landowner intending to carry out any work involving the clearing of vegetation without development consent should obtain their own independent legal advice.
The penalties for clearing vegetation without the necessary approvals can be severe. For example, the NSW Land and Environment Court recently imposed a $180,000 fine on an individual for clearing woodland listed as an Endangered Ecological Community. The penalty is the highest imposed for such an offence and is further evidence of the continuing trend of the Court to impose significant fines for breaches of environmental legislation. An Endangered Ecological Community does occur within the Heritage Estates.
Council has recently reviewed its policies regarding the transfer of land in lieu of unpaid rates. A comprehensive policy and accompanying maps entitled Small Lot Rural Subdivisions – Transfer of Land in Lieu of Unpaid Rates was adopted by Council on 27th February 2007, and can be viewed at:
Under this Policy, Council may accept the transfer of land within the Heritage Estates, in lieu of unpaid rates, if requested to do so by the owner. In such circumstances, Council will meet all legal costs associated with the transfer of the land. Where property owners are subject to debt recovery action, land owners will have 30 days to agree to a repayment schedule or transfer of the land to Council. Alternatively, under S.713 of the Local Government Act, 1993 Council may move to sell the land by public auction where rates and charges have been unpaid for more than five years. In the case of vacant land, Council may sell the land within 12 months but only if the amount of outstanding rates exceeds the value of the land.
The co-operation of State Government Agencies and the Commonwealth is an essential part of the rezoning investigations. Rezoning of the land at Worrowing Heights can only occur once all the Government agencies are in agreement and the Minister for Planning agrees to make a draft local environmental plan.
The content of the page will be regularly updated as this matter is progresses. For further information please contact Eric Hollinger, Senior Project Planner on 02 4429 3320 or planning@shoalhaven.nsw.gov.au
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