Single power pole on ‘zombie’ block paves way for waterfront development

It was sold for $250,000 as an unlivable bush camp five years ago, but a waterfront block of land near Byron Bay may now be developed after a judge found consent for a “country dwelling” granted in 1978 is still valid.

The installation of a single electricity pole on the Brunswick Heads site, most likely in 1979, counted as the physical commencement of work, the Land and Environment Court ruled in July, meaning the development consent did not lapse as it otherwise would have in September 1982.

The block at Brunswick Heads, highlighted in red, may now be developed.

The flood-prone block of land on the Brunswick River was put up for sale with its adjoining block in 2019 as a 1456-square metre parcel, with a price tag of $250,000. The listing for the “bush camp” said there was “no dwelling entitlement or approval to live on the lots”.

Two years later, the double block was sold again for $1.8 million to Whites Beach Investments, and the company’s sole shareholder and director, Mandi Kim Morison, found a 1978 development approval among old council papers for the land. The company took Byron Shire Council to court, seeking a determination that the DA was still valid.

Whites Beach Investments will now have to work with the council to determine what exactly a “country dwelling” entails, but the company argued in court that it meant a single residential building designed to accommodate one family or household.

The council did not contest the case but told the Herald that the DA would have never been approved under the council’s current planning laws.

The power pole on the land which the court found kept the 1978 DA alive.Credit: Danielle Smith

Part of the land carries a “category 1” bushfire risk, and the land is also flood-prone, sitting at less than two metres above sea level when developments in that area must be at least 3.2 metres. The council said the block also has biodiversity conservation values, no access to sewerage or water and no clear vehicular access through the surrounding crown reserve.

The former owner, who was awarded the DA in 1978, submitted a building application to the council the next year before withdrawing it and abandoning the project. The council said the application suggested the “country dwelling” involved a ground-level slab and a brick veneer building.

Brunswick Heads sits at the mouth of the Brunswick River.

NSW does not have a sunset clause to kill off historical or “zombie DAs”, where consent granted under previous planning laws remains valid if physical work has been carried out on the project.

Other states put a completion deadline on DAs, and a parliamentary inquiry is looking at whether NSW should also pass such a law, given community concerns about decades-old DAs, which sometimes cover hundreds of homes, being built on what is now recognised as critical habitat or flood or fire zones, or important for Indigenous heritage.

‘Absolutely absurd’

Greens state member for Ballina Tamara Smith said the Brunswick Heads case showed why a sunset clause was needed.

“Something that’s 50 years old cannot possibly be considered fit for purpose,” she said of the 1978 consent.

“You’ve got the planning laws as they currently are being dispensed with and using 50-year-old planning rules instead. It’s absurd, absolutely absurd.

“Why do we need another little McMansion in the flood zone in Brunswick Heads?”

Labor MP Clayton Barr, who is chairing the NSW parliamentary inquiry into historical developments, said councils were having to “get into a time machine” to deal with historical DAs using old laws.

He hoped the inquiry would be able to stop such situations arising for future councils and governments, but said there was little the government could do to cancel already approved DAs because that would mean having to pay developers who own the land billions of dollars in compensation.

“There are a lot of those existing consents out there, and they get stuck in time,” he said.

“It’s incredibly frustrating and disheartening to hear stories of some DAs that were gained 40 years ago and just allowed to sleep, meanwhile, very slowly but gradually, we have started to recognise that Aboriginal culture and heritage might sit within those sites.

“And we’re watching the climate literally change in front of us, leading to more devastating floods and fires. And we have seen report after report identifying the decline of our species.

“As a human being with common sense, I think this is madness, crazy and insane, but as a person who wants to acknowledge and support the fact we live in a society that lives by rules and by law, I totally respect those developers have not broken any rule or law.”

Whites Beach Investments also owns a 2.23-hectare block of land on a river near Tweed Heads, which it bought for $780,000 in 2021.

Attempts to contact Morison and Whites Beach Investments were unsuccessful.

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