Sometimes it’s not until fences appear around bushland that the South West Rocks community knows something is happening, says Larah Kennedy.
Another “zombie” is rising from the dead.
As demand for housing reaches crisis point and land values soar, developments that had laid dormant for years in the New South Wales mid-north coast town are now being revived.
The latest to recommence was approved in 1993. And due to a gap in regulation, it only has to adhere to the environment and planning standards of 30 years ago.
“We understand there’s a housing crisis but the issue is that these DAs [development approvals] don’t really have an expiration date and can literally be this old and not have to pass the test under the current legislation,” says Kennedy, who is president of a community group advocating on the issue.
“Zombie DAs”, as they have been dubbed, have become an issue along the NSW coast, where incoming residents can be surprised to learn nearby patches of coastal bushland had residential developments approved years ago. As more works begin, many are now calling on the state government to step in and require developments to meet modern environmental and planning standards.
“Our concern is that an old development can clear a site when we know that the science and community expectations has changed – and that legally they’re allowed to do that,” the general manager of the Kempsey Shire council, Craig Milburn, says.
“State legislation would have to change and that’s what local councils are asking: that state government change the legislation around those old DAs.”
A spokesperson for the government said the issue was complex and it would engage with local communities on the matter.
But the issue has already reached boiling point for the Kempsey Shire council. Last month, it lost on appeal in the NSW Land and Environment court after refusing to provide a construction certificate for the development approved in 1993. The developer, Rise Projects, claims the project will reduce pressures on rents and housing by providing 180 low-rise residential dwellings in resort form.
Sue Higginson, a NSW Greens upper house MP, says a major trigger reviving the zombie DAs has been the pressure from government to build more housing.
She says it’s difficult to know how many zombie DAs there are in the state, but a number have emerged in towns crying out for housing and where land values have dramatically increased after city folk flocked to the regions during the Covid peak.
“Developers have likely realised it’s now financially worthwhile to start working on their development,” she says.
The party wants planning legislation amended to require any developments dormant for more than five years be reviewed under modern environment and planning standards.
But the Housing Industry Association’s executive director for planning, Mike Hermon, said allowing reviews of existing approvals would rob developers of the certainty required to make fiscal and commercial decisions.
He said developments could be postponed for various reasons and it was difficult to know whether the re-emergence of some recently was due to rising land values.
In Tura Beach, on the NSW far south coast, residents learned in June last year that an area of bushland, which they say is of high ecological value, had been approved for subdivision for housing in 1989. The residents have been challenging the council, which is in favour of the development.
Further up the coast in Coila Lake, residents have been advocating against a DA approved in 1983 to develop 60 residential buildings.
Sam Tierny, a south coast lawyer who is providing advice to both communities, says requiring a review of dormant DAs would provide a balance between meeting the needs for housing and protecting biodiversity.
“What’s the harm in making sure it meets the modern criteria?” he says.
A key problem, Tierny says, is that development approvals “exist forever” so long as they completed minor work that qualifies as substantial commencement.
Three years ago, the government amended the laws to increase the amount of work needed for substantial commencement. But what it didn’t do, Tierny says, is “deal with the 40 years of development consents that were still hanging around.”
It was on this basis that Kempsey Shire council initially refused the construction certificate for the development application first lodged in 1993.
Milburn says the council didn’t believe that the bore hole the developer had drilled almost 30 years ago to run tests on the soils qualified as substantial commencement.
A spokesperson for Rise Projects said the company had lodged a new development application 12 months ago that adhered to current regulations, but it was stalled by the council, prompting the developer to resort to the old DA.
As the community waits to see if the state government will step in, Kennedy says she’s in despair to see the bushland cleared.
“It feels like we have no power to ensure appropriate development in our community.”
