Before and after clearing Before and after  (courtesy Blue Mountains Gazette)

Site clearing on Bodington Hill, Wentworth Falls for ‘Flora and Fauna Park’
Where is the site?
The Location The Location
10 Great Western Highway Wentworth Falls (next to Dillinger’s Nursery). The concrete driveway off the highway halfway up the hill (near the ‘Wentworth Falls’ sign) is the entry to the site.

The site is of high environmental and visual significance in a ‘Land Between Towns’ area, which is meant to provide a vegetated buffer between Bullaburra and Wentworth Falls.

This is the site of the controversial ‘Flora and Fauna Park’ which was the subject of a major community campaign opposing the development 30 years ago.

The development didn’t proceed and the site has been sold several times since, most recently in November 2017.

What happened?
From The Road From The Road
Over an unknown period up to May 8th, approximately 2-4ha of native vegetation and trees was clear-felled and removed from the site or trittered and spread over at least part of the cleared area.

No sediment controls could be seen from the fence on the highway on May 9th when several Conservation Society members went to see the damage.

It appears that clearing has been done in the E2 Environmental Conservation zone at the property boundary on the highway, destroying the wildlife corridor leading to the tunnel under the highway.

The clearing was reported to the Council by local residents and the Society.

The immediate concern is the potential for a major silt pollution event downhill into the large swamp and creeks in the next heavy rain.

Why didn’t anyone know about this?

A construction certificate (CC) provided by a private certifier approving the vegetation clearing was lodged with the Council in December 2018. Council has no part to play in this process, other than put the documentation on its website. The private certification system by-passes council and there is no public consultation. The council is the only entity that needs to be notified of the commencement of work done under a CC, at least 2 days before the work begins. The Society is trying to ascertain if the Council was notified.

Was the landclearing legal?

Land Clearing Land Clearing  (courtesy Blue Mountains Gazette)
The Society believes that the landclearing does not comply with the conditions of consent in the 1989 development approval. These conditions required a number of reports, plans and approvals before work could begin.

The clearing was undertaken based on a construction certificate issued by a private certifier and Council had no involvement in approving the recent clearing of vegetation on the site (information on the construction certificate can be found here. The Society has raised a number of concerns in regard to the validity of the certificate issued.

This event again raises questions about the private certification approval system in NSW.

The Society is vigorously pursuing the matter with the Council and with MP for Blue Mountains, Trish Doyle.

What is the developer saying that he intends to do with the site?

The developer told the Blue Mountains Gazette 29th May 2019 that the plan is for a $30 million dollar "five to six star" wildlife park development with 40 hotel rooms, which will "attract one million people per year"… "Construction will commence soon. There will be multiple species ... reptiles, koalas, wallabies ... I think the answer is yes [to crocodiles]".

The reference to ‘crocodiles’ relates to the initial 1989 wildlife park development application which included a salt water crocodile display. The developer at the time agreed not to include the crocodiles after intense community pressure. Approval for a wildlife park (without crocodiles) was granted in November 1989.

See the first Blue Mountains Gazette article (May 2019).

See the second Blue Mountains Gazette article (June 2019).

See the Gazette's Croc Park Zombie Development Fine article (September 2019).

Hasn’t the development approval lapsed after 30 years?

Apparently not. This is because in 1996 the NSW Supreme Court, Court of Appeal, found that work that the then owner of the site undertook just days before the development approval was due to lapse (November 1992) did not require building approval and constituted ‘commencement’. If a development is deemed to have ‘commenced’ the development approval apparently never lapses. This has been confirmed by the NSW Department of Planning.

What happens next?

The Society continues to raise concerns in regard to the Flora and Fauna Park development, adjacent to the Great Western Highway at Bodington Hill, Wentworth Falls.

Members of the Landuse Subcommittee have met with senior Council officers, the Mayor, Mark Greenhill, and MP for Blue Mountains Trish Doyle. We understand from our meeting with Council that they are still investigating whether the land clearing was undertaken consistent with the original 1989 development consent.

The Blue Mountains City Council wrote to the Minister for Planning, Rob Stokes, about the problem of ‘in perpetuity’ development consents, citing the case of the Flora and Fauna Park. See Councillor Schreiber’s motion to send the letter, the Council’s letter and the Department of Planning’s response.

See Blue Mountains Gazette article featuring Councillor Schreiber’s continuing campaign against ‘zombie’ development approvals (August 21st 2019).

The Society has also received a response to its complaint to the Building Professionals Board (BPB) in regard to the private certifier who issued the Construction Certificate for the land clearing. The Society raised concerns that the Construction Certificate may have been issued in breach of planning legislation and, potentially, in breach of the development consent. As a result of our complaint, the private certifier was issued with a Penalty Infringement Notice (PIN) for $1,500 for an undisclosed infringement. The BPB informed us that under their disciplinary penalty guidelines and legislation, “specified matters” can be dealt with by issuing a PIN. The BPB would not tell us what the basis for the fine was and also stated that the outcome of the complaint would not be publicly available on the BPB’s online ‘Register of Disciplinary Actions’. We therefore don’t know on what grounds the PIN was issued (ie what infringement the certifier was found to have been guilty of) and what aspects of our complaint were upheld.

This is highly unsatisfactory and points to another problem with the private certification system and its regulation – lack of transparency and full disclosure in relation to the outcomes of complaints made by members of the public and any resulting disciplinary actions. Because of the implications of this case for land clearing throughout the state, the Society lodged a submission in relation to the private certification system and its regulation to the current NSW Legislative Council Public Accountability Committee’s Inquiry into the regulation of building standards, building quality and building disputes. Here's our submission.

We have also written to Rob Stokes (Minister for Planning and Public Spaces), Kevin Anderson (Minister for Better Regulation and Innovation) and Matthew Kean (Minister for Energy and Environment), drawing their attention to these overlooked shortcomings of the private certification system and its regulation. The Society also requested urgent legislative reform to put a time limit on implementing decades old development consents. Both the Flora and Fauna Park and the hotel development adjacent to Katoomba Golf Course are examples of so-called ‘zombie’ DAs being activated decades after the original development consents were issued. Here's our letter to Minister Stokes.

The Society continues to pursue these issues with our local MP Trish Doyle.

Signage goes up at Flora and Fauna Park site

The Fence New Perimeter Fencing
New perimeter fencing has recently appeared around the site with signage promoting “Blue Mountains Wildlife Park”. If the developer proceeds, as he has publicly stated, to build a Flora and Fauna Park, construction of this aspect of the development can’t begin until a new Construction Certificate is lodged with Council. This hasn’t happened so far.

Note that a Construction Certificate is an approval, not an application for approval. There will be no opportunity for public consultation.

It is also important to note that the original development consent was for a Flora and Fauna Park only, and any expansion or substantial variation of the development, such as a hotel, will require additional development assessment and consent. The public will be able to comment on any such new plans.

What you can do

The Council still needs to know that the community is appalled by this environmental destruction and that it expects the Council to pursue the matter and potentially take action against the owner and the private certifier if the lawfulness of the Construction Certificate and the clearing is in doubt.

Contact the council by phone on 4780 5000 or email stating your concerns about the landclearing and asking what the council is doing about this.

Also contact the councillors and the mayor. Their contact details can be found on the BMCC website.