Council votes down flood plain plan

By Tim Howard

A a standing-room-only gallery at the Clarence Valley Council chambers in Maclean could not contain its emotions during a fiery debate on a motion aimed to halt development on the West Yamba flood plain.

More than 40 residents, who had earlier wielded a banner and placards outside the chamber, had come to support Deputy Mayor Cr Greg Clancy’s notice of motion, which sought to have vacant land in the region rezoned to stop it being developed.

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His NOM asked that council put a planning proposal to the NSW Government calling on it to make changes to zoning allowing development on the flood plain.

Also in the gallery was Greens MLC and solicitor Sue Higginson, who had given a passionate deputation to the council earlier in the day, supporting Cr Clancy’s proposal.

Ms Higginson in her deputation said Cr Clancy’s NOM was sound and it was the councillors’ job to bring planning matters like this to the State Government, rather than rely on the government to make changes.

Mayor Ian Tiley and Cr Peter Johnson, could not participate in debate on the item because they were members of the Northern Region Planning Panel, which has an interest in this item and forbids members from taking part in this debate.

The mayor’s absence meant Cr Clancy was required to chair the meeting during debate on the item.

During debate, as it became obvious the NOM did not enjoy the support of the majority of the councillors left, the gallery became restless, forcing Cr Clancy to make several calls for quiet and remind them they could be ordered from the room.

Cr Karen Toms and Cr Steve Pickering both interrupted the meeting to complain about the comments coming from the gallery and Cr Toms alleged she had heard a threat uttered.

During questions, councillors learned from the council’s director environment and planning, Adam Cameron, a planning proposal would take between 12-18 months to develop and cost at least $400,000.

Cr Toms questioned about her concerns the West Yamba Urban Release Area planning was part of a State Government planning instrument and the council’s attempts to overturn it would undermine a lengthy process involving State and Federal governments and consultation with the community and other stakeholders.

Cr Debrah Novak, who chairs the Clarence Valley Floodplain Committee, said the committee was updating the Valley’s flood plain planning and the release of the update of the NSW Flood Plain Development Manual was imminent.

She had concerns information from these studies could conflict with information the planning proposal and inhibit its chance of success with the NSW Planning Minister, Paul Scully.

In debate Cr Clancy said halting development on the flood plain had support from the top down, with Prime Minister Anthony Albanese and former NSW Premier Dominic Perottet both saying it had to end.

He said former Clarence MP Chris Gulaptis had offered to lobby for the rezoning  and the councils Community Climate Change Committee called on council to deal with flooding issue arising because development approvals requiring massive importation of fill to West Yamba building sites had created flood problems during extreme weather events.

He said the council had sound legal advice, including some from Ms Higginson, advising council it would not be liable to compensate developers if vacant land was rezoned.

“Sue Higginson, solicitor and Greens member and Member of the Legislative Council, advises the only time the council or the state government is required to compensate landowners is when it intends to acquire and or reserve land for a public purpose, such as open space or public reserve  within the meaning of the Local Government Act (1993), a National Park or other land dedicated under the National Parks and Wildlife Act (1974), a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose, “ Cr Clancy said.

“Council’s own legal opinion supported this view.”

He also noted the the 2022 Flood Inquiry Report July 29, 2022 said flood planning had not been effective.

“It (the report) states that in the evolution of flood planning the rhetoric of proactive processes (urging a risk-based approach to determining safe places to build) featured in many of the relevant policy releases over the decades,” Cr Clancy said.

“However, it has been compromised in practice by short-term pragmatism often in the guidance documents that accompany the policies).”

Cr Jeff Smith, who seconded Cr Clancy’s NOM, said it gave the council a chance to show leadership in the community and be brave.

“Council exists for a time like this. The community is looking for leadership from its elected representative,” he said.

“It’s our time to show the State and surrounding areas that this is important and this is where it’s going to start and for that I support this NOM.

“Where it takes us – it’s a risk, we’ve got to be brave – but it’s an important turning point, I hope, for flood plain management in the future.”

He also noted he had received a lot of support for rezoning to halt development, but none for more development.

“Leading up to this day, I have received 38 emails, there have been two deputations, a couple of phone calls and people pulling me up in the street,” he said.

“Meanwhile supporters of the WYURA , zero. Zero. I have never heard anyone support the WYURA to me.”

But support for the NOM ended there.

Cr Bill Day brought a foreshadowed motion: that the mayor, on behalf of the council, make a submission to NSW Premier, the Hon Chris Minns and the NSW Minister for Planning and Public Spaces, the Hon Paul Scully, copying the Member for Clarence Richie Williamson, MLA, seeking commitment that the NSW Government will support and indemnify council in the event of a litigation occurring should CVC seek rezoning of WYURA based on the impacts of further development on the environment and the risk to human life and property from future flooding.

He said he agreed with much of what Crs Clancy and Smith had said, but was concerned the council was going out on a limb needlessly.

“I’m wary of Clarence Valley Council pioneering reforms in the way outlined by the NOM,” he said.

“I seriously doubt we can achieve anything other than spend money without State support.”

“My concerns include the fact that many areas in this local government area, other than West Yamba, have had similar flooding issues.”

Cr Pickering was also against the NOM, while sympathetic to the reasons behind it.

He was concerned it was coming ahead of both the councils revised flood planning model and the update of the NSW Flood Plain Manual.

He also had legal concerns with the council pioneering a policy of “back zoning” which had not been tried in any other local government area.

“I would rather see this motion come forward after the update flood model, after the NSW Flood Plain Development Manual had been released,” he said.

“But it’s come to council today and it’s not the right time to be reviewing this without the latest information that’s available.”

Cr Toms was the most strident critic of the NOM.

She downplayed the significance of the flooding, say “it’s flooding from rain from the sky”.

She noted that many streets in Yamba were blocked, but disputed people were trapped for all that time.

“I happen to know you can get around the Angourie Rd roundabout at low tide, when the high tide was full. And that was in the March event 2022,” she said.

It’s not actually true that it’s blocked for years (sic). I’ve got a property down Shores Dr, with my disabled son living there and I can assure you he can get through when the tide is out from my home that is not in a flood area.”

She said council was jumping the gun with the NOM.

“We are a council, we don’t make the laws. They are legislated zone laws. Why would we lead with our chin and be the first one in Australia to try, at ratepayers’ cost, that’s my thing. They feel we can change the zoning.

“We cannot change the zoning. We have to rely on Mr Scully to agree to change the zoning. And at the moment he’s sitting on his hands and not doing a thing,” she said.

“Maybe I’m being unfair as he’s a new minister and maybe he’s being briefed by some staff.

“And the same with our new premier. Why aren’t they acting?”

Cr Toms claimed Yamba residents’ fears were misplaced.

“Have you seen Lismore,” she said. “Now Lismore, that’s flooding over levees and things.

“The flooding in West Yamba is, you get time even with Yamba. And it’s not high velocity flooding like it was in Lismore.”

She said even after the Lismore flooding, its council was cautious about adding a clause to their Local Environment Plan to add flooding assessment measure.

“This council adopted it a couple of years ago and it’s now in our LEP and Lismore who you would think would want that in straight away, almost didn’t get up last Tuesday. 6-5,” she said.

“Why is West Yamba such a dangerous place to build houses?”

Cr Novak urged the councillors not to vote for the NOM and wait for the committee she chaired’s work to be finished.

She said it would take around 12 months, which would bring it in ahead of a planning proposal.

And she had concerns that it only dealt with one small section of the Valley, when there were other flood-affected areas.

She said the planning proposal would not be fully armed when it went to the NSW Government.

“I am happy to lead with my chin,” she said. I am happy to lead and be a pioneer in this place. You know I can do this. I have done it before.

“But hell, I am not going to do it without having something behind me, backing me. And that is an arsenal of information and evidence to do that.”

In his right of reply Cr Clancy said the council had all the information it needed to develop a comprehensive planning policy.

He said Ms Higginson’s deputation had shown the council needed to take a leading role in informing the State of the need for zoning changes in West Yamba because continually waiting for more studies was delaying dealing with the problem.

He also noted the CSIRO was breaking down its responses to climate change to smaller areas, but he said the most pressing need the council had was to stop “putting people in harm’s way”.

“Putting houses on the flood plain is not the way out of it,” he said. “And I’m disappointed we have more people speaking against the motion than for it.

“But all I know is I have done all I can to convince the other councillors. I don’t know what else I could say. I don’t know what else I could do.”

Put to a vote the motion was lost 5-2 and Cr Day’s foreshadowed motion was debated.

Cr Toms attacked it saying I was strange to ask the NSW Premier to indemnify the council for potential rezoning.

“It doesn’t make sense to me and if I was a minister and premier I would be scratching my head too,” she said.

“What government is going to support indemnifying CVC, should we seek rezoning? Which we said we are not going to.”

In his right of reply Cr Day admitted his motion from “not perfect” but necessary to “start the ball rolling”.

It was lost 4-3, withs Crs Toms, Clancy, Novak and Alison Whaites against.

Ms Higginson was scathing of the way the motion was by debated.

Like many in the gallery, she left early, saying  “You’ve missed the boat,” as she left the chamber.

“I’m so sorry for what you had to hear. It was in no uncertain terms insulting,” she said.

“The debate actually became incoherent and very worrying on the part of some.

“The lack of qualification and understanding of the planning system is concerning. The motion was such a sound, reasonable and proactive proposal.

“We will continue to work for what we know is right.”

During a break after the vote, Cr Clancy said he would bring the NOM back to council in three months.

Caption: Some of the 40 or more Yamba residents who supported the deputy Mayor Cr Greg Clancy’s notion of motion aimed at stopping more development on the West Yamba Flood Plain at last week’s Clarence Valley Council meeting.