Monday 24 September 2007

A Toma-disaster at Yorkeys

Here's some of the events surrounding the remains of the Toma development site, on the southern end of Sims Esplanade, Yorkeys Knob.

For 20 years the site at the southern end of the Sims Esplanade in Yorkeys Knob has operated as an eco tourism Bure style accommodation with 30 freestanding elevated bure style cabins, a communal eating pavilion and two small swimming pools all tucked in amongst the melaleuca and associated native forest on the site.
The site was protected from any major development or removal of the vegetation by Constrained Development Area status under the Planning Scheme for the balance of the City of Cairns as well as the area being mapped by DNR as endangered remnant vegetation.

The property was purchased by The Toma Group about four years ago and a five story 111 underground carpark resort was proposed for the site.

Under Planning Scheme for the balance of the City of Cairns (the previous Plan), the site was impact assessable, so a sign notifying locals that this development was planned was erected.

The community submitted 40 or so submissions, petitions with in excess of 500 signatures and 90 signed form letters objecting to the development by the due date (the 13th of February 2004 ) to Cairns City Council from the Yorkeys Knob community of which consists of only 1,200 households.

The Council proceeded to give the development a Preliminary Development Approval in June 2004 no submitters were notified of this nor offered the right of appeal. In September several months later development approval was given to the developer The Yorkeys Knob Resident's Association then went to the media complaining that our objections to the development had been ignored.

Finally, eight months after the original submissions were lodged with Cairns City Council, our right to appeal the approval/s were received by many, but not all, of the submitters. The Residents then lodged an appeal with the Planning and Environment Court.

The Residents' case went to court on February 14, 2005. Three days in Court, $10,000, a swath of experts and locals taking the stand, and six weeks later they emerged jubilantly from the Cairns court house after Judge White had ruled to uphold our appeal on the grounds of loss of residential amenity, unreasonable height, bulk and that the development was completely out of character for the area

The most units in one block in Yorkeys Knob are a block of 33. This development proposed in excess of 200 units.

In March 2005, the new Cairns Plan was released and after several applications by the Toma Group the Cairns City Council have finally approved the development. The issues of height bulk and destruction of residential amenity still remain or are even exacerbated in the new proposal.

Local Division 10 Councilor Margaret Cochrane voted against the development at the Council meeting on the 30th of November and agrees that the plans have not substantially changed at all and in fact the proposed development has progressively become worse.

The Yorkeys Knob Residents' Assn are currently obtaining legal advise regarding this situation and are terribly disappointed that all our hard work, fund raising, the invaluable assistance of Kirsty Ruddock from the EDO and our sheer determination has been overridden with no obvious form of redress.

On the 30 November 2004, a motion was passed at the Residents' Association monthly meeting to lodge an appeal No. 457 of 2004 with the Planning and Environment Court in Cairns against the Cairns City Council and the Toma Group Pty. Ltd. After counting our donations against the final outstanding bills, they still owed money.

Three years on, and Council have still not managed to track Toma down to pay costs nor clean up the site. Here's the Cairns Council minutes from April 2007:-


That Council:
1. Employ a contractor to enter and clear a rubbish filled overgrown block situated at 23-25 Sims Esplanade, Yorkeys Knob. Commence legal proceedings against South Beach Developments, Toma Group and Alistar Toma to retrieve the cost of cleaning the land.

Under Local Law No. 16 (Control of Nuisances):
  • a. Breach of Local Law No. 16 (Control of Nuisances) Section 15 (1)
    Prohibition of Visual Pollution:
    ‘An occupier of on whose land or materials are brought, or allowed to accumulate, that seriously detract from the visual amenity of the land commits a nuisance.’

  • b. Breach of Local Law No. 16 (Control of Nuisances) Section 19(1) Air
    Borne Hazards:
    ‘A person must not keep on land objects or materials that are:
    i. Unsecured or inadequately secured and
    ii. Likely to be carried away in high winds with resulting risk of
    personal injury or property damage.’

  • c. Breach of Local Law No. 16 (Control of Nuisances) Section 21(1) Dangerous Substances/Materials:
    ‘An occupier of a residential lot commits a nuisance if objects or materials are brought, left of placed on that land so as give rise to a risk of personal injury or damage to the health of a person or damage to property.’

  • d. Breach of Local Law No. 16 (Control of Nuisances) Section 17(1) Control of Nuisances:
    ‘If land is overgrown with vegetation so the vegetation becomes unsightly or likely to attract reptiles or vermin, the occupier of the land commits a nuisance.’
2. The costs associated to be made recoverable as a debt from the person to whom the notice is given pursuant to Part 27 of Local Law No. 16 (Control of Nuisances) and a debt recovery process to be carried out pursuant to the Local Government Act.

The 1.4373 hectare site, that is deemed of 'environmental significance' is "a disaster waiting to happen" says Pam Bigelow, who headed the Residents' challenge against Alistair Toma.

Bigelow recalls how the original Vegetation Protection Order was "lost" on the property, according to Council representatives and Toma.

The old swimming pool is now choking with weeds and stagnant water for a child to drown in. the property has no boundary fence, and is an eyesore.

Queensland Health's Tropical Population Health Unit has confirmed 18 cases of dengue in Cairns and the Dengue Action Response team has been engaged in inspections of the site.

Southbeach and the Toma debacle is a compelling case of how a Council and a developer got into bed together, and each simply wanted a fast buck to walk away with in the minimum amount of time.

Walk along Wattle Street towards the Esplanade today, and you'll be greeted with a breeding ground for more than mozzies. There's rotting rolls of discarded carpet, chemical drums, overturned garbage bins overflowing with rubbish and a once free-flowing creek, the pride of an eco-friendly neighbourhood, now stagnates under the weight of filth.

The Residents' Association has appealed several times to their local Councillor at their monthly meetings to get the site cleaned. Alistair Toma has long left town and his rates are nearly 2 years overdue. Cr Cochrane says that these will be recovered through means, which could result in sales of property. At one point, an address Toma supplied to Council for sending invoices and communication, was subsequently return 'Gone No Address'.

Council hesitates to incur the cost of $15,000 to clean up the mess for fear of it being unrecoverable. After several e-mails to council, in March The Residents' Assn made a formal written request to Council to make the site safe with a clean up of the debris and discarded materials, including the derelict van.

In April last year, the Hon. Judge White in his deliberations found that the Southbeach development would have an adverse effect on the residential amenity of the area to such an extent that preliminary approval should not have been granted by Council.
But if the plans for the four-story, 90 apartment development got shot down, the site is still endangered.

Judge White set aside the preliminary approval and development approval that had since been made. The Environmental Defender’s Office of Northern Queensland represented the Yorkeys Knob Residents' Association who sought to challenge the preliminary approval given to the development. Kirsty Ruddock of the EDO-NQ appeared as Solicitor/Advocate.

The development approval given was for 90 apartments, 40 with dual key capacity, comprising of four storeys, with a rooftop fifth level, that extended 60 metres along Wattle Street, and 130 metres along Kempton Street, together with retail and restaurant facilities along Sims Esplanade.

Local Residents challenged the approval on the basis of ecological sustainability including the importance of vegetation and wetland on the site, and the height, density, bulk and general aesthetics of the development. The development proposal required the removal of 14 significant trees, and development next to a wetland that the Residents claimed contained some local environmental significance.

In his ruling, Judge White found that the Constrained Development area that existed over most of the area required special attention to ensure the residential amenity of the area was not affected. Further he said that while the Council did have the ability to grant a dispensation in relation to height, given the nature and extent of adjacent and surrounding land uses, the height allowed was too great. In particular, the design of the development had 130 metres in length of buildings of 12.7 metres in height that was be visible and of course to local residents. The adjoining area of Kempton Street, had no bulky blocks, and therefore the development was not within the reasonable expectation of the residents in the area.

The Judge found the land had some ecological value, but found that the propositions in the Strategic Plan relating to ecological sustainability could not be looked at in isolation and therefore there was no conflict with these provisions. He also accepted that the car park on the adjacent road reserve adjacent to the beach area would be built, as submitted by the Council, in a way to ensure that the vegetation in that area was preserved.

As a result of the decision, the developer would have to lodge a new development application with the Council if he wishes to build on the site. The case empowered local communities to have some say in the development that occurs in their area. This was a very important precedent for the region about what is acceptable in relation to development and its effect on amenity for local residents.

Following the judgement, a legal spokesperson for Toma said that he would seek recourse from the Council for approving the development in the first place, yet the Council was complicit to the approval process all the way along. It seemed that each were hell bent of the process of green and development at any costs with little checks in place of community consultation or vegetation removal approvals being checked.

Local residents are still fighting to preserve the affected land from the developer's neglect and Cairns City Council's lack of action.

The site remains in a state of disrepair and scattered with debris to this day.

1 comment:

Anonymous said...

Isnt it funny that the people of Cairns, via their rates, can send the Mayor to China to party up a storm, yet cannot afford to clean up their own backyard......Im sure the little junket that he is on now is costing way more than the $15,000.00 that it will cost to clear this site.