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The ‘additional’ orange trees are those CVC “considers will be removed” by the applicant, while the applicant nominated the pink trees as those that would be removed. “As the extent of vegetation clearance is the key basis for refusal of the DA, it is important to note that Council’s assessment disagrees with the extent of clearance upon which the Applicant has based their assessment,” writes planning and environmental law consultant, Planning Ingenuity. “It is noted that Council’s assessment report does not indicate if Figure 5 [above] (which shows additional trees Council considers will require removal) has been prepared or reviewed by an expert i.e. Council’s arborist, referring only to it being a ‘Council-prepared mark up’ and an assessment of the likely extent of clearing being undertaken by ‘Council staff’.” Image: Contributed

Gulmarrad subdivision set for rejection

Councillors will reject a proposed 11 large-lot large residential subdivision at next week’s Clarence Valley Council (CVC) meeting; that is if they support the council officer’s recommendation.

The subdivision proposal was first considered by councillors at the June 2020 meeting, however, rather than acting on staff’s recommendation to refuse the development application (DA), for multiple reasons, councillors unanimously voted to defer their final decision.

Councillors called for “advice from a planning and environmental law professional consultant, experienced in the NSW Land & Environmental Court on the veracity of the two competing final reports: being one [by CVC staff] and the other from the applicant in the DA”.

Councillors also decided that an “assessment of the suitability for purpose of the new flood information/study … provided by the applicant” was required.

At the June meeting, argument centred on whether or not a specialist ecologist should be engaged as part of the process.

Councillor Peter Ellem’s motion (seconded by Cr Greg Clancy) was along those lines; however, the motion was successfully amended by Cr Baker (seconded Cr Arthur Lysaught) to confine the advice sought to an “environmental law professional”.

Councillors Ellem, Clancy and Novak were opposed to the amendment.

Cr Baker argued that engaging a consultant ecologist was unnecessary.

“It is a matter of narrowing the process,” Cr Baker said.

He hypothesised that both the DA applicant’s and the council officer’s assessments tabled at the June meeting might not be “satisfactory”.

He said his amendment aimed to have an “independent assessment of the two reports [and] … try to contain [the process] to a single consultant”.

Councillors Ellem and Clancy argued their preference to include an ecologist in the process.

“We are told there is divided opinion between [CVC’s] senior planner and the consultant who is experienced, but doing the bidding of the applicant,” Cr Ellem said.

While he was “all for simplification” of the process, Cr Clancy said including an ecologist in the motion was “a minor thing” for “an issue so critical to this DA”.

“I’m not convinced that the person put up as consultant to review the reports has the necessary environmental or ecological experience,” he said.

“I’m not suggesting they don’t have environmental law experience ….; no doubt they’re competent with their expertise … but to remove the ecologist [from the motion] is short sighted.”

Meanwhile, it appears that CVC’s staff and the independent “planning and environmental law professional consultant” are at odds when it comes to providing concise advice.

Regarding the law consultant’s report, staff write in their conclusion: “The report concludes that, in principle, there is agreement with the overall recommendation of Council officers to refuse the proposed development.

“Further, the review suggests Council’s assessment report provides a thorough consideration of the implications of the proposal and the officer’s recommendation is reasonable.”

Whereas Planning Ingenuity’s conclusion suggests that some of the issues could be resolved: “In principle, we agree with the overall position of Council to refuse the proposed development.

“We have, however, indicated that, in our view, Council’s assessment on the biodiversity/fauna impacts is not supported by sufficient reasoning to provide a robust reason for refusal of the DA.”

The consultant’s report goes on to make observations such as: “it appears that flooding and stormwater may be able to be resolved” and “there may be merit to support a variation to the sight distances to the proposed access from McIntyres Lane”.

These ‘either or’ observations are qualified by the consultant, who suggests “it is open for Council’s Engineers and Council’s Manager Civil Services to assess [if] … non-compliance is an appropriate reason for refusal”.

Planning Ingenuity’s report judges itself thus: “Overall, the assessment report provides a thorough consideration of the implications of the proposal and its recommendation is reasonable in light of the assessment undertaken.

“We have noted certain aspects of the assessment that could be elaborated on to strengthen the evidence base for the position reached by Council staff.”


Gulmarrad subdivision proposal: CVC staff’s reasons for refusal: