First battle lost but Kempsey council's determined to win the war against Zombie DAs

Decades-old development applications, acting as the foundation for large-scale land clearing and construction today, have put out-dated environmental planning laws under the spotlight.

This has been the case with Rise Projects development at South West Rocks; a 180-unit resort complex first approved in 1993.

Almost 30 years later, the land is now being cleared under the 1993 regulations despite council's pushback and community outcry.

Kempsey Shire Council's next step is to lobby state government, advocating for a change in law so that land development is brought to the modern day.

"Zombie DAs" are popping up around Kempsey Shire, particularly at South West Rocks, however they are a statewide issue concerning local councils and communities throughout NSW, especially on the coast.

They are also at a state-level issue as local councils have little power over them due to the current laws allowing them to move forward.

It was resolved during the Ordinary Meeting on April 18 that council will write to The Hon Chris Minns, Premier of NSW; The Hon Penny Sharp, MLC; The Hon Paul Scully, Minister of Planning and Public Spaces; Michael Kemp MP, Member for Oxley; and Sue Higginson MLC.

Council is asking for amendments to the NSW planning laws to adopt a currency period of development consent approvals of up to 5 years, during which time physical construction works must be substantially completed.

This is to remove provisions allowing developers to activate zombie DAs consent approvals.

Kempsey Shire Council General Manager Craig Milburn believes the law needs to change to be brought to the modern day.

"The state government needs to look at the legislation and consider how the old DAs that haven't been acted on, or have been acted on very minimally, how they will move forward...with consideration with what we know now, that we didn't know twenty [to] thirty years ago."

Mr Milburn says that while council understands the outcome for Rise Development is disappointing for many people in the community, the developer has done nothing wrong.

"Legally they have followed the process...they are following what the law lets them do".

"They are acting within the law, what we've got to do is lobby the government to change the law," he said.

This is because a "zombie DA" allows time to stand still; time in which the consent was approved.

When Kempsey Shire Council was required to provide a construction certificate to the Rise developers by the Land and Environment Court (LEC) in March 2022, a 29-year-old consent was activated.

The land on Phillip Drive that is currently being tree-lopped is now mapped as coastal environmental area under the NSW State Environmental Planning Policy (Resilience and Hazards) 2021.

Nowadays, infrastructure development proposals on this land would need to consider social, economic, and environmental consequences associated with hazardous landscapes such as beaches, dunes, estuaries, and wetlands.

The LEC ruled that 2 Phillip Rise Pty Ltd can proceed with plans to construct to construct a 180-unit resort complex, together with a commercial and administrative precinct on coastal environment use land behind the beach, close to Salt Water Creek.

Concerned community members have responded with protests, presentations at public forums with council, and plans to petition state government to put a stop to Zombie DAs.

Destroying koala habitat and building on Indigenous cultural sites and low-lying flood plains are just some of their concerns.

"We lost the first round but the fight isn't over," said South West Rocks resident Warren Bailey.

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