Thursday 30 October 2008

Foley Road: Lessons from the Lookout

You'd have to be stuck in a Council Strategic meeting to have missed this one. I've been rabbiting on about the debacle unfolding up near Palm Cove at Foley Road, for three months now.

A number of concerned residents near the ensuing mud slide, have communicated many horror stories with me about this dodgy development.

Keith Martin is one local resident, who has seen first hand the effects of what this ill-conceived and Council sanctioned development will have. Keith has recounted to me some of the goings on that has allowed this appalling hillside environmental raping to be carried out.

He says that with the current focus on a potential threat of erosion and off-site sediment transport at the Foley Road development, it's interesting to review the response of Council, EPA and the developer the last time a similar incident occurred, just a few kilometres away.

In December 2005 and January 2006, Hedley Constructions commenced clearing and excavation works on a hillslope development at Paradise Palms called 'The Lookout'. This development was an almost identical situation to the Foley Road site – a 9 lot residential subdivision on a steep elevated hillslope. A feature of this development was the construction of a 4 m deep drainage trench, rock-hammered up the hillside just 100 m from Deep Creek, with the associated spoil dumped adjacent. Downstream neighbours feared an imminent sediment inundation threat to their property and to the environment. Council were notified on a number of occasions, including written notification from lawyers.

Despite these pleas to stop the work and stabilize the site for the wet season, the land disturbance was allowed to continue unabated.

When the first storms of the wet season eventuated, masses of sediment escaped from the development site and flowed into neighbouring properties and nearby Deep Creek, an Endangered regional ecosystem. Again, Council were alerted, and again nothing was done. Following further wet weather, neighbouring property owners notified EPA of the issue and, on inspection of the development site, commenced an investigation which eventually led to a successful prosecution. In October 2007, EPA won a court case against Hedley Construction on two counts of unlawful environmental nuisance, and they were fined $90,000 plus court costs. The engineers, CMC Engineering were also fined $20,000 for “contravening a condition of a Cairns City Council development permit”. A press release from EPA, dated 18th October 2007 read in part:
  • EPA Northern Region Director of Environment Rob Lawrence said the $90,000 fine awarded by the court sent a clear message to developers and builders across the state regarding their environmental responsibilities.

    “In this case several hundred metres of a relatively pristine tributary of Deep Creek was contaminated with sediment from the Paradise Palms site.

    “This conviction should serve as a warning to developers and builders in Queensland to make sure they have sediment and erosion control measures in place to protect our waterways from incidents of this kind.”

Given the current situation at Foley Road, have the developers really received that “clear message”, are they solely to blame for the problem anyway, and would EPA step in this time to prosecute if necessary?

It is now clear that the 'Lookout' prosecution did little to improve the environmental performance of the developer at this site. Sediment runoff continued from the site for two wet seasons following the initial complaint. At one point in 2007, sediment laden water was re-directed into the neighbour’s property, nearly flooding the house. There have been numerous breaches of Council regulations and their development permit since then but no subsequent action has ever been taken. Despite all this, in March 2008 the same developer applied to further reduce environment controls over the site, which is within the Conservation Planning Area Code. A Development Approval was submitted to reduce the level of assessment of buildings in the subdivision from 'Impact' to 'Code' assessable. This effectively removes any public notification. Cairns Council approved this application, saying that the previous prosecution was irrelevant.

Are the developers really to blame though? It has to be accepted that they have no interest in environmental protection. They view the approvals process as an annoying hurdle to be jumped before the real work commences. They will do whatever actions they are allowed to do by the regulators within the often vague conditions of their development permit. That is their legal right.

Council is the sole regulator in this case. They approved the development permit, set the environmental performance conditions, and also approved the operational works and soil and erosion plans that EPA and the courts later found to be inadequate. Council was responsible for monitoring the site, and had ample warning from the public that a problem existed. Council had every opportunity to ensure that the environmental breach at 'The Lookout' was avoided, but they did not act to prevent it. You don’t have to be an expert to know that major earthworks on a hillslope in the middle of the wet season is a bad idea.

So how come Council got off scot free in the prosecution? Why did the developer and engineer incur fines, when it was Council - the regulator - who really failed to act in the best interests of the community and the environment?

There is a basic problem. In their quest to develop the Cairns northern beaches to the limit, Council planners continue to support the developers by recommending approval of development applications with minimal regard to the environmental consequences, the community or even their own planning scheme. They attach no substantial conditions to these approvals, even though they are duty bound under the Integrated Planning Act to properly assess and regulate the effects of development. Subsequent Council monitoring and enforcement is weak or non existent, and appears driven only by the level of public complaint.

It now appears that in the case of Foley Road, Council and EPA have assessed the situation, and as a result, Council has instructed the developer to initiate a program of mitigation and stabilization, which is to be commended. Let us hope it is successful.

The trouble is that all this probably would not have occurred if it hadn’t been for the very vocal complaints of locals and community groups, and the subsequent intervention of politicians. At the “Lookout” the site was away from public view and only near neighbours knew what was happening, and they were ignored by Council. It shouldn’t be that way. Council has to start doing the job that ratepayers expect, and it starts with more robust planning assessments. It means rigorous assessment of Development Approvals, serious compliance with existing environmental regulations at all levels, strict approval conditions set, monitoring of job sites, and real enforcement of any breaches found.

This is what the community expects, not excuses and delayed reactions in response to public outrage.

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