Tomakin Community Association Inc.
ABN 18 863 430 476

Acting Secretary: Cindy Jagelman
Address: 55 Redhill Parade, Tomakin, NSW, 2537
Phone: (02) 4471 7653

22 June 2005

The Director
Urban Assessments
GPO Box 39
SYDNEY NSW 2001

Development Proposal (amended) - Barlings Beach, Tomakin - DA 77-3-2002

On behalf of the Tomakin Community Association Inc., I am writing to you to express the objections to the above Development Proposal of this Association, our members and ratepayers and residents in the wider community.

The Association has convened two open meetings on this issue, a Public Information Forum and a Community Meeting/Workshop on 2nd and 9th June respectively. Both were extremely well attended by members of the Tomakin and surrounding communities, the first having 'standing room only' and the second fully utilising the available seating capacity. The views expressed at those meeting are incorporated into this submission, together with a wealth of input received through informal community networks and from individuals.

As you are aware, a large number of individual and 'pro forma' submissions have been sent to you about this Development Application. Whilst we have encouraged people to write their own submissions, many members of the community have said that they were not confident in their ability to do so but were most anxious to submit their objections. Therefore, many of those people have submitted 'pro forma' submissions. They have done so after taking them away, reading them and then returning them to a central point for postage, or posting them individually. We submit that they should not be penalised for this. An Officer of your Department has assured the Association that 'pro forma' submissions, whilst counted separately, do have equal weight.

We also advise that a great deal of concern has been expressed about:

• A clause in the Contract for Sale between Eurobodalla Shire Council and Barlings Beach Community Pty Ltd that would appear to have effectively 'gagged' Councillors by making them personally liable if they voice their views; and
• The sale price for the land being too generous for the Purchaser. The Developer has advised us that 'the sale price is $2.3 million, indexed, plus an additional $200,000 for additional expenditure on Public Reserves' and that 'Payment for the land will occur before development commences, likely to be within six months of DA consent'.

We advise this purely for your information. We understand that it is not a matter for your Department and we have written to the Minister for Local Government, The Hon. Tony Kelly about these concerns.
Whilst the commercial interests of both Council (the Seller) and Barlings Beach Community Pty Ltd (the Purchaser and Developer) should be completely irrelevant to the consideration of this Development Application, we note that the purchase price would appear to be most favourable for the Purchaser.

Overall Objection

• The Tomakin Community Association Inc. is accurately reflecting the views of the overwhelming majority of people in the Tomakin and wider communities in submitting that consent for the Development Application should be denied.

We submit that this land should be re-zoned appropriately to conserve it forever as a unique place of aboriginal cultural heritage, archaeological and environmental significance.

Further, this is environmentally sensitive land in a coastal zone and it should not be developed for urban expansion. It is the only piece of open foreshore land between Malua Bay and Broulee. If this development occurs it will remove it forever. There are a very large number of existing properties for sale (and they do not appear to be selling quickly any more), together with other large parcels of land currently available for urban subdivision. This proposed urban subdivision at Barlings Beach is neither needed nor warranted.

We understand that reasons for objecting to the Development Application must be supplied. However, we wish to make it plain that in doing so, we are not suggesting that any amendments or alternative proposals would be acceptable or, in any way, remove the fundamental total objection to the development of this land.

Broader Scale of Impact - of and on this proposed development

It would defy the logic of any coherent planning policy not to consider the development of the Barlings Beach site with reference to planned surrounding large-scale developments - as well as their impact on the existing township in Tomakin and other adjacent communities at Mossy Point, Broulee, Guerilla Bay and Rosedale.

Specifically, any development of the 800+ lots behind Barlings Beach to the rear of Bevian Swamp and the adjacent Barlings Beach Caravan Park site will have a major impact on the Barlings Beach development itself and on the existing communities. We can understand that the developer would not have factored this into their Masterplan but we submit that DIPNR should do so. For example (and not exhaustively):

• Traffic flow from George Bass Drive to and through the Barlings Beach site will be much higher than estimated;
• The need for parking within the Barlings Beach site and in Tomakin will be much higher than anticipated;
• The impact on existing infrastructure will be much larger than anticipated and, we submit, any development on any of the sites should not proceed until the existing (inadequate) infrastructure is upgraded to accommodate existing development, plus sustain the additional burden.

Eurobodalla Shire Council's Comments to the Minister

We understand that the comments contained in the Report to Eurobodalla Shire Council's Works and Facilities Committee have been forwarded to the Minister. At Point 28 of that Report it is stated that:

'The above comments indicate a number of areas/issues where Council feels insufficient information is available or clarification is required in regard to significant aspects of the proposal. As a consequence, Council has not included suggested conditions that may be attached to any approval.'

Whilst not encompassing all of the issues of concern to this Association and the community, we believe that the concerns raised in the Council comments are very valid ones.

Council cannot make any objection to the Development Application and (presumably) nor can they make any recommendation that could be construed as an objection.

Had Council not been prevented from objecting, we believe that the concerns they have raised would warrant, in themselves, a recommendation that consent be withheld, at least until such time as the information/clarification is obtained and fully evaluated regarding these 'significant aspects of the proposal'.

Barlings Beach Pty Ltd - Response to above Report

The Association is aware that Coomes Consulting Group Pty Ltd, acting for their client Barlings Beach Community Pty Ltd submitted a 'Response to Development Report' to Council's Works and Facilities Committee.

There are so many areas in which this Response refers to 'conditions of consent' that, if those conditions were granted, the ensuing Masterplan would be something quite different from the one that has just been publicly exhibited and on which we (and many others) are commenting.

If 'conditions of consent' are planned that alter the design or the content of the Masterplan then we strongly submit that the whole process will need to be gone through again. That is, that the developer should be required to submit another amended Development Application, that it should be publicly exhibited and a further opportunity given for people view it and lodge objections if they wish to do so. Otherwise people who are stakeholders in the community will have no idea as to what any actual development will entail.

Aboriginal Place and Aboriginal Cultural and Retail Facility

Representatives of this Association met with representatives of the Mogo Land Council and the Department of Environment and Conservation on Monday, 20 June 2005.

We fully understand that the Aboriginal Community, represented by the Mogo Land Council, has agonised through many years of negotiation and have faced bitter disappointments. We accept that this whole process has been most distressing and confronting for the Aboriginal Community and sincerely regret that, through breakdowns in communication and/or lack of understanding, the non-Aboriginal community has not provided the support that it should have done. That was in the past.

This Association fully supports all decisions made by the Mogo Land Council and understands that underlying all of those decisions is a desire for self-determination and the means by which they can achieve an improved standard of living and quality of life for the Aboriginal Community. We have offered to support them in any way that we can.

At the above meeting, we signalled the following comments regarding the Aboriginal Place and the Aboriginal Cultural and Retail Facility and it is with the permission of the Mogo Land Council representatives that we submit them:

• The developer has stated in a written response to a question from the Association that: 'the commencement of development on land with frontage to George Bass Drive has not been fixed and could commence at a time/stage suitable to the developer given that this part of the site has its own separate road frontage'. Given this, we submit that the development of the site for the Aboriginal Cultural and Retail Facility should be completed first so that the Aboriginal community does not have to wait, potentially for years, in order to have their Facility and have the means to realise their aspirations. DIPNR should impose this as a condition of consent.
• Lots 124 and 125-140 face directly onto the Aboriginal Place and should be deleted from the plan. Private residences on these Lots will 'land-lock' the Aboriginal Place. This Place should be available for the Aboriginal community to utilise without oppressive surveillance from residences on those Lots and without residents in those dwellings attempting to use the Aboriginal Place as their own private beachfront reserve (which we anticipate will be the case). Further, access to the Aboriginal Place is severely restricted. The Masterplan provides for only one narrow shared pedestrian/vehicular access way between Lots 123/124 and 125.
• We reject any proposal that would see amenities placed on the Aboriginal Place, unless the Aboriginal community specifies those amenities. In particular, we have noted that the design for a proposed cycleway cuts straight through the Aboriginal Place. We understand that this is not acceptable and therefore, the Masterplan should be redesigned to allow for a cycleway to be constructed within the boundaries of the proposed development.

Fill
The Association respects the position taken by the Mogo Land Council that it is better to put fill over the site in order to preserve Aboriginal human remains and artefacts than to allow them to be destroyed by development. We also agree that:

• The best solution would have been to preserve the whole site as an Aboriginal Place without urban development and therefore without the need to cover it with imported fill.

Where we make reference from now on to 'Fill' in this submission it is in relation to the impact of importing the fill and the developer's claims that in some way the imported fill will provide for a new 'natural ground level'.

Public Open Space

As we have said, the Aboriginal Place should not become the 'de facto' public open space. There is no provision for public open space within the Masterplan. The conservation zones are just that and public access to and within them should, quite rightly, be limited.
The Masterplan admits that the Coastal Council asked for roads to abut protected spaces rather than houses.

• We submit that Lots 124-140 (previously mentioned), together with Lots 106-123 (abutting the dune foreshore) and Lots 38-56 and part of Lot 155 (abutting the Littoral Rainforest buffer zone) should be deleted from the plan.

This would allow for:

• Protected spaces to be encircled by perimeter roads;
• The provision of some public open space and much needed car-parking facilities (especially along the Ainslie Parade extension); and for
• The cycleway to proceed through the open space on what would have been Lots 106 to 140.
  However the resulting public open space would be insufficient, especially given the broader scale of impact, and so Lots 141-154 should also be deleted from the plan. This would still retain Lots 1-37, 57-80 and 81-105, plus a portion of Lot 155 and all of Lot 156.
• This would result in a total of 86 Standard Residential Housing Lots, plus the remainder of Lot 155 and Lot 156 as Integrated Housing Lots. Surely this would provide a more than adequate return for the developer, given the extremely low purchase price?

Traffic

We understand that approval will be sought for the construction of a temporary or permanent creek crossing from George Bass Drive for use by construction traffic entering and (we hope) leaving the site.

• The crossing should be permanent, not temporary, but in any case it will not solve the problem of the amount of traffic (especially trucks carting fill) to and from the site and the impact that this will have on surrounding roads - Tomakin Road, George Bass Drive - and the traffic hazards that they will pose to other road users.
• Further, we would expect a provision to ensure that subsequent traffic, associated with the building of dwellings (concrete mixers, trucks delivering building materials, etc.), would be prevented from accessing the site from Tomakin.

The developer has made an error in assuming that Barlings Beach residents will use the George Bass Drive exit/entry point to travel to/from Batemans Bay. They will take the quickest route, like everyone else, and use the Tomakin Road and Princes Highway to get to Batemans Bay.

The developer has also failed to consider the amount of traffic that will travel to and through the Barlings Beach site and through Tomakin from other proposed developments (refer to the heading 'Broader Scale of Impact' in this submission).

The developer has not quantified the number of dwellings (and therefore residents) to be housed on the proposed site. Therefore we submit that their estimates as to the amount of traffic are meaningless.

We also note, with some alarm, that the developer has not addressed Council's comment regarding 'potential queuing impacts on the Forest Parade/Ainslie Parade intersection when the site is fully occupied'. That intersection is already a dangerous one in Tomakin.

Parking and Boat Ramp Facilities

No car-parking facilities are provided within the Barlings Beach site. As Council has suggested in its Comments, 'on street parking demand along the foreshore (Ainslie Parade) extension) would be high and adequate provision should be made in this area. Nomination of total numbers for foreshore parking is requested at this time.' The developer's response that the car parking at Melville Point represents a reasonable assessment of requirements is not justified.

The developer has not quantified the number of dwellings/potential residents within the Barlings Beach site and has ignored any provision for people outside the site wanting to park near or at the Aboriginal Place or foreshore to Barlings Beach.

The developer has also indicated that it would unreasonable for them to be responsible for car parking external to the site. Their justification is that the demand for car parking would not be created by the development - because the design provides for access to Barlings Beach from within the development. This demonstrates a complete ignorance of Barlings Beach.

Barlings Beach, in front of the development and its access ways is not a safe swimming beach. Signposting will be necessary to warn residents and visitors of the dangers.

For that reason, many people will swim at Tomakin Cove and Tomakin Beach instead and are likely to drive there so that they do not have to tote all of their beach paraphernalia by hand - especially families with young children.
Neither Council nor the developer has in any way addressed the lack of parking for cars and boat-trailers at the Tomaga River boat ramp. There is insufficient parking now at the Tomaga River boat ramp and the requirements of boat owners from the Barlings Beach development, let alone when coupled with the 'broader impact' of other developments, will place an unsustainable burden on and around the boat ramp. It should also be noted that parking facilities for cars and boat-trailers at Mossy Point is also stretched to the limit, especially in holiday periods.

Littoral Rainforest, Buffer Zone and Asset Protection Zone (APZ)

There is no justification, apart from a purely commercial one, in having any Lot backing onto, or intruding into, the 100 metres Littoral Rainforest buffer zone. As we have stated, Lots 38-56 and a part of Lot 155 should be deleted from the plan.

• The complete buffer zone - 100 metres - should be preserved.
• The 30 metre APZ should be outside the 100 metre buffer zone
• This can be accommodated by deleting these Lots from the plan because the road will abut both zones.

If the current plan is adopted, a large part of the banksia forest (which protects the Littoral Rainforest) will be removed because the developer intends to remove any tree with a girth of less than 300mm at chest height, so fewer than 1 in 20 trees will remain. Weed infestation and predation by domestic animals is inevitable. The littoral rainforest and the flora and fauna habitats will be destroyed. We also draw your attention to Council's comments regarding the impact on flora and fauna in this area and to the correspondence you have received from WIRES (which we fully support).

Dune Foreshore

Lots 104-124 abut the dune foreshore area. The only reason for doing this is a commercial one. As we have said, these Lots should be deleted from the plan.

• These lots will 'privatise' the dune foreshore. Because of this, we submit that the dunes will be infiltrated by residents, their domestic pets and the weeds from their gardens.
• The proposed boardwalk is not 'open space'. It is merely an access way and the developer does not want to extend it through to Tomakin at Redhill Parade.
• Further, the boardwalk is located between dunes up to 7.4 metres on the one hand (according to the developer) and fences of the abutting residences on the other. The resulting space is not 'open'. It is confined. To say that the proposed dwellings and their residents would provide 'security for public space' through 'casual surveillance' is a fanciful notion.
• The developer has stated that most residents would be holiday homeowners and retirees. There will be numerous vacant dwellings at any one time.
• Even so, if the owners of the dwellings abutting the foredunes were actually in residence they would not be able to monitor what happens on that walkway in any case.
• This proposed boardwalk is actually a dark passage and dwellings abutting it would not be able to see what is going on in that passage. The dwellings themselves would also be at risk of criminal invasion.

The only way to provide the sort of casual surveillance and security that the developer proposes is by siting dwellings so that they overlook a completely visible open space - and that means having a road between the dwellings and the foredune area.

Building Design and Number of Storeys

The developer has stated that the 'intent' is that the 'built form must be of a high quality and unique to the site' and has illustrated this with a number of examples in the Masterplan. However, the developer's purported vision for the built form is just that (an intent) and the illustrations are only examples of that 'intended' outcome.

There is nothing to prevent gross 'McMansion' style dwellings because the Masterplan relies on covenants and they are useless. Certainly, the Association has been advised by people who put holding deposits on blocks of land facing Redhill Parade in 2001-2002 (when those blocks were on the market) that they were never advised that there were any restrictions on the sort of dwelling they could build which would different from those applying to other people building dwellings elsewhere within the Shire.

Building Height and 'Natural Ground Level'

The developer has attempted a convoluted argument whereby the existing ground level is not to be regarded as the natural ground level because, they say, it has been 'heavily modified and no records exist of levels prior to the disturbance'. Therefore, they say, the new filled level should be the 'natural ground level'. This is ridiculous.

• How can a level arrived at by the importation and placement of fill be deemed to be 'natural'?
• In any development the existing ground level - at the time the development was planned - would most likely be the result of a multiplicity of factors and forces over many years, whether natural, manmade, or a combination the two.
• The developer should not be permitted to re-define 'natural ground level'.

Building height should be 8.5 metres from 'natural ground level' and that is the level, as it currently exists, not the unnatural level constructed after the importation of thousands of cubic metres of fill.

Building Storeys

The developer has stated that 'the dunes are 7.4m high and will effectively block ocean views'. However, they want to be able to have 8.5 metre high dwellings of three (3) storeys on top of 1.5 metres of imported fill. That makes a total height from the existing ground level of 10 metres. So, the top storey would be 2.6 metres above the dunes.

The only reason for requesting such a deviation from the Residential Design Code is in order to 'sell' those views to prospective purchasers. That commercial reason is not a valid reason for dwellings on the Barlings Beach site to be three (3) storeys high. Consent for this should not be granted under any circumstances. To do otherwise would set a bad precedent.

Risk of Flooding

The developer has not addressed this issue adequately. We fully concur with the objections raised by The Coastwatchers Association Inc. and, therefore, that Association's objections are our objections as well.

Impact on Existing Amenities and the Tomaga River

The impact that this development will have on Tomakin's beaches and on the Tomaga River has not been addressed. The developer is not interested.

In particular, the Tomaga River is already in a perilous state (refer to the Tomaga Estuary Management Plan). The additional pressure from this proposed development will pose a further unbearable strain. When that pressure is added to by the further 'broader scale of impact' of other surrounding developments, the outcome could be catastrophic.

One solution would be to close the Tomaga River to boats. That would be an outrageous solution and our Association would reject it entirely. On the other hand, this developer could be required to make a very substantial contribution to the preservation of the river and estuary. And so should any other developer of land in the near vicinity whose potential residents will use this fragile waterway and estuary.

Our Association trusts that you will read and give due consideration to all of the points of objection and issues that we have raised. If you require further information, we would be pleased to supply it. Our contact numbers are:
Cindy Jagelman (02) 4471 7653
Barbara Kidd (02) 4471 7334

We look forward to being kept informed of the progress of this Development Application through your Department.

Yours Sincerely

Cindy Jagelman
Acting Secretary
Tomakin Community Association Inc.