The NSW Land and Environment Court has ruled in favour of a residential project on the Mid North Coast based on a so-called "zombie" development application lodged 30 years ago.
The court this week overturned a prior refusal it made for site clearing works at the South West Rocks development site based on a development application (DA) first lodged in 1993.
It relates to a development planned by Rise Projects for land on Phillip Drive, close to the Trial Bay Front Beach near the centre of town.
It comes as communities along the state's coast are challenging historic housing developments that have laid dormant for years but are now being revived.
The phrase "zombie DA" has become a default term for projects approved years and sometimes decades ago that have not been completed.
Kempsey Shire Council and the Greens said it was a disappointing result as historic development applications do not hold up under modern environmental standards.
"We've come a long way as a society and we are more conscious of the impact we can have on the environment than we were 30 years ago," said Kempsey Shire Council general manager Craig Milburn.
"We understand that many in the community are frustrated by the tree clearing in South West Rocks being permitted under very old zombie DAs.
"This is the third of these zombie developments that have started [in South West Rocks] since COVID and each of them has allowed for a very large degree of clear felling of fairly heavily wooded forests … so people have been rightly concerned about it."
Greens MP and planning spokesperson Cate Faehrmann said the South West Rocks ruling was a "devastating" outcome for the local community and the environment.
"This is symbolic of how bad our planning laws are and that our planning laws just aren't fit for purpose," she said.
"This development is proposed off the back of a 30-year-old development approval and will destroy sensitive coastal bushland."
Court appeal upheld
Mr Milburn said the council first received a construction certificate application in 2021 to commence some land clearing on the development site.
"We weren't convinced as an organisation that the DA had been substantially commenced, and we believed it had lapsed and therefore we didn't issue the construction certificate," he said.
"The proponent took us to the Land and Environment Court and appealed that decision. They originally lost that in 2022, then subsequently appealed that court decision."
The court has now upheld the appeal and the council has a week to work with the developer and issue a construction certificate. It has also been ordered to pay costs.
The court determination was based on a technicality relating to an original development consent requirement for the need to conduct acid sulphate soil testing by a certain date.
Testing was carried out on the site in 1995 for oil company Caltex which owned part of the current development site at the time.
In upholding the appeal the court found this testing "disclosed, relevantly, no presence of acid sulphate soil or potential acid sulphate soil on the site" and satisfied the development consent — even though it had not been carried out by the then owner of the site for the purposes of satisfying the development consent.
Calls for NSW planning law overhaul
Mr Milburn said it highlighted the need for NSW planning law changes.
"Our councillors have been vocal alongside Local Government NSW that the state government needs to amend the NSW Planning laws," he said.
"There should be a 5-year period applied to development consent approvals, when construction works must be substantially completed.
"Where works are not substantially completed, the consent should lapse and a new development application made and assessed on its merits."
Ms Faehrmann said zombie DAs needed to be ruled out and developers be required to seek fresh approval based on modern planning standards.
"These zombie DAs are causing headaches for councils and local communities right across the state. They are threatening thousands of hectares of precious coastal bushland," she said.
In a statement, Rise Projects said it had acted within what was allowed by the NSW planning system.
It said although the 1993 consent "has been upheld and found valid", the company hoped to work with the Kempsey Shire Council to deliver the best possible environmental outcomes on the site, while meeting the community's housing needs.
It said it "aims to deliver a design that is compliant with the Kempsey Shire Council's Local Environmental Plan and Development Control Plan with consideration to the urban context, including the local environment, social and economic factors, and community needs".
