Bulldozers may begin clearing land at a South West Rocks development site in the coming days.
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Kempsey Shire Council has adhered to requirements of the state government's Land and Environment Court (LEC) and issued a Construction Certificate to the developer of 'The Rocks' site on Tuesday, April 4.
With this certificate, the developer of the site known as the Rise Development on Phillip Drive, can now commence land clearing, however, they have agreed not to clear some areas which will remain protected until April 19.
Council's General Manager, Craig Milburn, said that council was doing what it could to protect the environment in South West Rocks while operating within the state government's regulatory framework.
Kempsey Shire Council and the developer appeared in the Land and Environment Court of NSW on Monday, April 3.
During this hearing, council made the argument that some areas must be protected. The developer agreed to provide an undertaking to the LEC not to clear agreed areas of the site.
The orders issued by the court on Monday included an agreement that two defined sections within the site, as well as some koala feed trees, will be protected in the short-term.
The developer must hold off on clearing the protected zones until the window for appeal closes on April 19.
In a statement released by Kempsey Council on Tuesday, April 4, it states the agreed protected areas have been less disturbed than the degraded and exotic areas of the site and comprise of mature and regenerating canopy tree and shrub species of the native plant communities of the site.
The short-term protected zones include large remnant trees, tree hollows, and ground layer habitats for fauna, provide potential habitat for several threatened species occurring on the site, provide habitat for other common non-threatened fauna species, and have low weed incursion.
"The retention of these areas will result in the least environmental impact in the short-term," Mr Milburn said.
Council will hold an extraordinary meeting on April 6 at 10am in the Council Chambers to further discuss this issue.
"On Thursday, council will hold an extraordinary meeting to make a decision on whether to appeal the matter," Mr Milburn said.
"If council chooses to appeal, we will also seek an extension of the protection of these portions of the site until the matter is resolved in the NSW Court of Appeal.
"This is effectively a one-month holding pattern, but residents need to prepare themselves for some land to be cleared."
Council says that while it issued the Construction Certificate in line with the court orders, it is examining all available legal options to minimise the environmental impact of the development and protect the unique natural environment of the shire.
"We understand that there is strong community frustration with the idea of this site being cleared on the strength of a 1993 'zombie' development approval and subject to the environmental regulations of 1993," Mr Milburn said.
"While we are required to comply with the court's existing orders, council will examine all practical legal options available to protect the environment, keeping in mind the cost to ratepayers of any further litigation."
The developer must provide 48 hours' notice of any development works, including tree clearing, before commencing. As such, bulldozers and other machinery may commence clearing the unprotected portions of the site this week.
Voices of South West Rocks (VOSWR) is a community group concerned with negative environmental impacts of development sites throughout South West Rocks.
Members of the community have recently protested against the current legislation allowing Zombie DAs like this one to move forward with 30-year-old agreements and regulations.
Spokesperson for VOSWR Larah Kennedy says the group acknowledges the effort by council to ensure specific areas of high biodiversity value are protected from clearing within the Rise Development.
"We appreciate the developer working with council to minimise environmental impact," she said.
"However, even though they are willing to be compliant with current environmental planning rules, the complexities of this site make it clear that isn't enough.
"The legislation does not adequately address the impacts of rising sea level and increased flood activity that are likely to impact this region into the future, not to mention the impacts of any decrease in habitat for threatened fauna."
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