Council land sale may breach Act, says consultant

Gosford Council may be in breach of the Local Government Act and State planning policy in its management and proposed sale of council-owned land on the Peninsula, according to an East Gosford environmental consultant.

Mr Phil Conacher of Conacher Consulting said that it appeared that the council-owned blocks on the Peninsula were not covered by a management plan, despite the Local Government Act requiring such a plan.

He said the council had also not followed the requirements of State Environmental Planning Policy 19 in its proposed sale of the land.

Mr Conacher said Jumbuck Close reserve was a "classic example" of how, without a management plan in place or adherence to SEPP19, council could be damaging any endangered ecological species or remnant flora present on the site.

"The appointment of councillors requires them to follow the rules and act just like we have to: follow traffic rules or get fined if we don't," he said.

"They have possibly destroyed a lot of other vegetation on the Jumbuck Close site and others that could have made those sites more significant."

Mr Conacher said the parcels of community land on the Peninsula that have been earmarked for reclassification and sale by Gosford Council should have management plans in accordance with the Local Government Act.

Under the Act, all land owned by a local council that is classified as community land must have a management plan prepared for it.

Mr Conacher said: "There was a plan of management for community land, natural areas and bushland prepared by council in 2002.

"Under the Local Government Act, council can prepare a generic plan of management but must identify what land is included in it," he said.

According to Mr Conacher, the Gosford Council document has a schedule attached which lists which parcels of land were included.

"None of the Peninsula lots appears to be on the schedule," he said.

All councils in NSW had to classify all their land holdings when the Act came into law in 1993.

"All land had to be identified, even if it was a 1920 subdivision or a person may have gifted land and expect council to look after it as a reserve for the sake of that family, a management plan had to be put in place," he said.

According to the Local Government Act, land owned by a council must be classified as either operational or community, Mr Conacher said.

Operational land included any land used for the general operations of council and includes depots, roads, and other infrastructure.

Community land was defined as land that was not operational and was generally public open spaces such as parks, reserves and conservation areas.

Community land could come into council ownership in a variety of ways: Crown land transferred to council by the State government; land set aside for community use as part of a development approval; or bequeathed to council from families, individuals or community organisations.

According to Mr Conacher, if Gosford Council failed to develop management plans for the Peninsula's reserves, it could be in breach of the Local Government Act.

Mr Conacher said that in reclassifying reserves the council had to pay regard to State Environmental Planning Policy 19 (SEPP 19), which covered the management of bushland in urban areas.

He said SEPP19 spelt out what Gosford Council must do if it intended to reclassify community bushland with characteristics of remnant vegetation.

According to Mr Conacher, SEPP19 stated that councils should give priority to retaining bushland unless it can prove a significant social, economic or environmental benefit for reclassifying it.

Its over-arching objective is to "protect and preserve bushland within urban areas... to protect remnants of plant communities which were once characteristic of land; to retain bushland in parcels of a size and configuration which will enable the existing plants and animal communities to survive in the long term", he said.

He said Gosford Council may also be exposing itself to compensation claims if it had acquired land at a price based on its unimproved value and then by rezoning, perhaps for residential development, its value per hectare is increased.

He said the original vendor may have a case for being compensated for that valuation difference.

Mr Conacher also questioned why Gosford Council has launched its land sale strategy now and not undertaken a review of its land holdings when the Local Environment Plan was drafted in 2013.

"The Gosford LEP was a 15-year process. They had four or five goes at it so surely reviewing community holdings would have been part of that process," he said.

SEPP 19 instructs councils that, when drafting an LEP, council should have regard to the priority of retaining bushland, he said.

"Why wasn't it identified that they needed for residential purposes?"

He also questioned whether the resale of the reserves currently listed would be viable.

"If you were a private developer wanting to develop those lands for residential development, you'd first have to apply for rezoning and you would have to find biodiversity offsets.

"You would have to find land of a similar nature and similar locality at a ratio of 10 to one.

"It is usually the person applying for the rezoning that has to find those offsets and that is why if Gosford Council goes ahead to sell those reserves the person buying the land could do their due diligence and may find requirements of the Local Government Act haven't been met."

Interview, 20 Jan 2016

Phil Conacher, Conacher Consulting