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Local resident and business owner Jeff Tarrant expresses his views on development in Bundeena. The views are those of the authour and do not neccessarily reflect those of BundeenaInfo.com
While the old fibro homes of Sutherland Shire have gradually been replaced by mansions and flats, there was good reason to believe that Bundeena and Maianbar, two of the Shire’s smallest and most remote communities, would never be confronted by major development issues.
No matter which political alliance controlled Sutherland Council, Bundeena and Maianbar were predominantly left alone.
Limited public transport (daytime ferry service only), 30 km of winding roads to the nearest major township, a unique position bounded by the Royal National Park and the Port Hacking River system, all combined to restrict development to just the odd vacant building block.
The area has always attracted artists, nature lovers, and those seeking respite from Sydney’s rat race and high prices. Transport problems meant that rents were low. During the Depression, a tent and shack village even existed for many years at Bonnie Vale. Few of the shacks now remain.
The physical boundaries of the community cannot grow because of the surrounding Park. Indeed, permanent resident numbers are shrinking, as is the number of cheaper rental properties, due to the increase in homes being sold for weekenders. There are limited commercial and employment opportunities available, due to the very specific nature of Bundeena, and the history of business closure is alarming. And this is relevant to the way in which Bundeena is changing.
Bundeena was certainly not on the priority shopping list of property developers. It simply was not a viable destination for the kind of medium-density development that turns a quick buck. Bundeena would generate its own pace of development.
OR WOULD IT?
In 2003 the sale and demolition of the old Community Hall in Bundeena’s main street, Brighton Street, the completion of the sewer and the loss of the heritage- listed old corner store by arson changed everything.
Bundeena has a small neighborhood business zone which runs along the main street from the corner site nearest the ferry wharf. According to the local Development Control Plan (DCP), the old corner store was to be the benchmark for future development in the neighborhood business zone.
However DCPs aren’t determinative when it comes to the Land and Environment Court. They give way to the State legislation or Local Environmental Plans (LEPs). And the LEP for Sutherland Shire allowed residential flats in all neighborhood business zones throughout the Shire, including Bundeena. There is no such zone in Maianbar.
Bundeena residents had never imagined that more residential flats would be built within the Royal National Park. There is a residential flat over the chemist and newsagent’s shops. In addition, some of the commercial premises above the ‘IGA’ building (which also houses the post office, estate agent, takeaway and café) had gradually been turned into residential flats as businesses folded.
Without a sewerage system, it was just not practical for multiple residential flats to be built in the centre of the village. But once the sewer was connected, this practical restriction no longer existed.
Three development applications for residential flats and many shops were lodged with Sutherland Council in the following twelve months. They related to the old corner store site, the old Bundeena-Maianbar Association Community hall (BMA) site and the present shopping centre, which houses the IGA supermarket, post office, estate agent, takeaway and café.
The Bundeena community was caught well and truly with their pants down.
Future planning for Bundeena was now in chaos. Seventy five percent of the commercial zone was up for re-development at the one time with no master plan. A specific development control plan to meet Bundeena’s future needs was still in the amendment phase. A new Shire LEP is close to completition. Under ‘LEP 2006’ Bundeena would all be zoned ‘environmentally sensitive’ – except for the neighborhood business zone.
Residents had to fight to get a permanent water supply and electricity connected; they had to fight to get a sealed road. Now they have a different fight on their hands and there is an enormous lack of understanding of the very real issues.
Bundeena residents played an active role alongside Council for many years in the ongoing process of forming the Bundeena Development Control Plan.
Bundeena Progress Association was invited by Sutherland Council to participate in the Land and Environment Court proceedings for all three cases relating to the neighborhood business zone. They had several meetings with Pike, Pike and Fenwick lawyers Gary Green and Elizabeth Rankin who were representing Council and discussed their submissions and evidence that they would be giving at the onsite hearings.
Jeff Tarrant says the Association has an obligation to the Bundeena community to object to developments that bear no resemblance to what the Bundeena Development Control Plan had intended. “This is not about losing the first of the three cases (the BMA hall site)”, Jeff warns, “this is about “community rights.” We are entitled to fight for a decent outcome.”
Through BPA, the community has been enthusiastically involved for sixteen years with Sutherland Council staff in working towards appropriate development goals, giving much consideration to Bundeena’s delicate location and need for specific planning controls, and in formulating the applicable DCP, including through surveys about what kind of development residents wanted to see.
On the 16th of March 2006 the first case relating to Bundeena’s neighborhood business zone was decided in the Land and Environment Court. Commissioner Brown gave approval for five x one- bedroom flats, two x two bedroom flats and three commercial spaces on the old Community hall site.
These flats could house around sixteen occupants and add three more shops. There are two shops closed down next door. “This is not a viable outcome,” says Jeff. “It makes no sense.”
Even within the community there is much confusion about the status and logic of the three developments. Some residents assume that the introduction of residential flats will create a population explosion in the village and that will balance out the many extra shops that will be built. That is misinformation.
If all the current development applications are approved, there will be twenty three residential flats in the commercial area and although they will dominate the village and change its unique character forever more, they will house in the vicinity of seventy to eighty occupants only ( current trends indicate most will be weekenders) – while the commercial spaces will more than double. Given Bundeena’s well documented history of business closure, that is a poor outcome.
Residents feel that Commissioner Brown worked strictly to the numerical issues of the LEP, downplayed the DCP and gave little weight to community concerns and evidence, saying repeatedly that the comments of residents were not backed up with ‘expert’ advice. Residents are concerned that the ‘public interest’ criterion enshrined in the Environmental Planning and Assessment Act – and community rights in relation to development matters – are effectively being bypassed by this implicit requirement that all community comments must be supported by expert evidence before they will be taken into account. Who is to pay for these experts? The community itself?
A letter dated 26th January 2006 from the NSW Planning Department signed by Planning Minister Frank Sartor was handed to Commissioner Brown on the day that onsite evidence was given at Bundeena. Mr. Sartor stressed in this letter that LEP 2006 was near completition, and that relevant numerical limits in the Bundeena DCP were going to be incorporated into that document.
Commissioner Brown said gazettal of the LEP was not imminent and therefore he would give it little weight in his judgment. At the same time, he played down the ‘village feel’ aspects of the Bundeena DCP because of the changes to the DCP that had occurred over recent years – changes, residents respond, that were intended to maintain the ‘village feel’ principles of the DCP notwithstanding the loss of the key corner store building.
Residents fear that with the stroke of Commissioner Brown’s pen, over sixteen years of active involvement by the Bundeena community in deciding a planning strategy that would retain Bundeena’s unique character and at the same time deliver a well balanced neighborhood business zone was thrown aside in favor of ad hoc unplanned development.
Commissioner Brown, in his judgment, claimed that no evidence was provided to the court on the reason for the reduction in residential floor space from the original DCP, 30/70 to the amending DCP 50/50. He acknowledged that it was important, and then proceeded to apply his interpretation to the changes, which proved to be very detrimental to the residents’ argument that this proposal was a gross over development of the site.
On the contrary, considerable evidence was provided to the court, by Neil deNett, secretary of the Progress Association, at the on-site court hearing on 16 February 2006, which explained the reasons. Neil deNett has extensive knowledge on the subject as he was on the council working party that prepared the original DCP. He was also involved in the movement for amending the DCP.
The Association believed that by not having considered crucial evidence Commissioner Brown has made an error in law. External advice from an independent legal source has confirmed this opinion.
Bundeena Progress Association wrote to Mayor Kevin Schreiber asking for Council to intervene and appeal the decision made by Commissioner Brown.
The council agreed to request a stay of proceedings pending an opinion from their legal advisors as to whether or not Council has grounds for an appeal.
There seems to be enormous inconsistency in Land and Environment Court decisions.
Commissioners when making judgments give enormous weight to Development Control Plans and resident evidence one day and brush them aside the next.
There appears to be a difference of opinion between court appointed experts and the court Commissioners as to such basic issues as Floor Space Ratios (FSR) – where two of the court appointed experts appear to be in support of the Bundeena DCP, while the Commissioners are prepared to allow considerably leeway, the precedent has been set and there is no reason to assume that Commissioners deciding the other cases will view this any differently.
It doesn’t take Einstein to work out that Bundeena is very site specific and it is imperative, when you have around 70% of your commercial centre up for development at one time, that a viable, sustainable plan is formalized. This is not about anti-development; this is about the future of our village.
The fact that the Land and Environment Court Commissioners have given little weight to the Bundeena DCP or to on site evidence given by residents is very disappointing and shows a lack of understanding of Bundeena’s specific needs.
In regards to the IGA development, Commissioner Roseth has allowed a number of amended plans to be submitted by the applicant. Commissioner Roseth acknowledged that generally court procedures permitted only one set of amended plans However he found a number of mitigating reasons allowing the applicant three opportunities to amend the plans.
Mars Capital Corporation PTY LTD, the applicant for the redevelopment of the corner store site, has decided to prepare new plans to submit to Council following a negative report from the court appointed expert.
What are Council and State government doing in all this? Council is on the face of it supporting residents, but the planning controls that they have jointly put in place with the State Government mean that residents are facing an uphill battle. Only State Government intervention is likely to assist.
There needs to be intervention from our local State MP, Paul McLeay, as well as from Mr. Sartor. Their offices have been kept well informed of the associated problems that confront this small community, but their responses have been few.
The fact that the Department of Planning intends to incorporate the Bundeena Development Control Plan into the LEP is coming much too late. The specific controls in the DCP designed to ensure that Bundeena gets development appropriate to its location and needs, will serve little purpose if the major part of the neighborhood business zone already has the go ahead from the Land and Environment Court.
Residents are aware that Frank Sartor has spoken to at least one of the developers in his office.
We challenge him to give the Bundeena community the same courtesy.