Protect Point Fullarton's wetlands for future generations

Question 1. Who bears the cost if the approval of the Fullarton Development results in litigation being brought against Council?
 

Local governments are becoming increasingly exposed to litigation arising from the risks of Climate Change. Claims might be made against local governments in the future in relation to development approvals and conditions that do not appropriately or adequately have regard to climate-related considerations. Councils have been advised that they are not protected by relying on outdated planning schemes and information services. The Royal Commission into National Natural Disaster Arrangements stated that:

‘The likelihood of increases in the severity and frequency of natural hazards should be considered in land use planning and building decisions. These decisions should be informed by the best available data on current and future risk.”
 

Numerous submissions to Council regarding this development have flagged potential litigation risks. These include:
 

• Significant environmental damage to Ramsar listed wetlands,

• Loss of walking/cycling track and loss of access to the foreshore,

• Failure to protect the assets for future generations,

• Environmental breaches,

• Failure to protect the habitat of the Latham Snipe,

• Property damage or loss of life due to bushfire,

• Property damage due to rising groundwater and unprecedented flooding, sea-level rise, and storm surges,

• The failure of the stormwater basin,

• Potential uninsurability of houses due to risks posed by flood and fire,

• Contamination due to disturbance of Coastal Acid Sulphate soils.

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Question 2. Approving drainage plans that can never be built
 

The stormwater plans that were supplied to the Commonwealth for an EPBC approval are ‘materially different’ to those currently before Council. Even the developer has implicitly acknowledged the plans currently before Council will significantly impact matters of national environmental significance and has substantively modified them in their EPBC referral. Approving a planning application with very different plans to those submitted to the Commonwealth seems incongruent, and at odds with integrated planning, and evidence-based decision making.

Why is the Council being asked to approve an out-dated planning application that even the developer understands would destroy migratory bird habitat of national importance and therefore cannot ever actually be built in its proposed form?  

Question 3. Loss of public open space without any financial compensation being deemed appropriate

The proponents' EPBC referral makes it quite clear that the intended function of the proposed drainage reserve is to both treat stormwater AND provide ‘enhanced’ habitat for EPBC-listed migratory shorebirds. This wildlife reserve will be screened by dense native vegetation and fenced off to protect migratory shorebirds from disturbance. The developer also states unambiguously in their Referral that the proposed reserve is to be managed by Council as a dedicated wildlife reserve rather than public open space. These conditions and functions of the reserve are critical mitigation measures necessary to minimise impacts on matters of national environmental significance under the EPBC Act 1999. Given that the proposed wildlife reserve will not be suitable as public open space, and no passive recreation contribution can be made, it appears incorrect to claim the Eagle Point – Paynesville walking track can simply be relocated to the proposed wildlife reserve.
 

What assurance does Council offer the Commonwealth government that the proposed wildlife reserve will in fact be managed appropriately, when a) Council has limited capacity, experience, and budget for threatened species habitat management, and b) no additional financial contribution from the developer to compensate the community for the loss of public open space was deemed appropriate?
 

Why was the East Gippsland Shire unwilling to answer these questions?