Heritage Estate Landowners being SCREWED BY THE STATE & FEDERAL GOV'TS

Heritage Estate landowners RORTED by the Federal Government

Written September 16, 2014

Why the EPBC Decision of Minister Garrett on 13/9/2009 regarding the ‘Heritage Estates’ is invalid.

SHORT HISTORY

In the late 1980's early 1990's 1234 Residential Blocks were sold by one agent to some 1000 odd purchasers, mums & dads. Since that time the council Shoalhaven City Council had obstructed the rezoning of this land to residential to reflect the current land ownerships. Landowners were made to start paying rates as "Residential Non-Urban" classifification (basically residential rates) and State Land Taxes and Stamp Duites and so on...

This situation went on with hollow promises from both the council and State that the land WOULD be rezoned Residential 2 (a).

The impasse led to the establishment of a Commission of Enquiry in 1999 under the NSW Local Government Act headed by Commissioner Cleland. His final recommendation (heavily tainted by the NSW National Parks & Wildlife) was that 730 blocks proceed to be rezoned residential and 504 odd be set aside as a "Wildlife Corridor". He went on to recomend that these 504 block owners be compensated by the 730 that would proceed at the rate then of $5,000 per block? This advice is deeply flawed and hence why the proposal was held up right until 2007 when it was then made subject of a Commonwealth process under the newly enacted EPBC Act 1999.

This meant that a Federal Minister had to made a determination as to whether the project would proceed or not. In June 2007 this responsibility fell on Coalition Environment Minister Malclom Turnbull, who determined it be the subject of a "Controlled Action" for the purposes of the Act. Strange decision seeing at the very same time he APPROVED the application of the Stocklands "Bayswood" development just 500 metres from the Heritage Estates.

Anyway the process for these poor mums & dads went on with the usual Public Servants writing report and report about the proposal, in the interim Kevin 07 took over and good old Midnight Oil's front man Peter Garrett becomes the Federal Environment Minister.

This is where this particular brief comes into play because he in his "slippery wisdom" shall we say, refuses the development on the 13th of March 2009 citing the loss of "endangered speices"???

In the ensuing years the Council, State Gov & Federal Gov devised a grubby plan "Caring for Our Country" grant to buy these "sterilized" blocks from landowners for $5,000 per block via the Foundation for National Parks & Wildlife (a front organisation). Many of these unsuspecting landowners paid up to $20,000 decades earlier!! Not to mention that the Gov in doing so were circumventing the very laws enacted to STOP them acting unjustly in land transactions with landowners.

This almighty CON wrought on simple honourable people is simply DISGUSTING !!

I am responsible for our (the SLA's) Legal Class Action Challenge which is currently before Justice Foster of the Federal Court of Australia. We have been awaiting his honors decision in this matter since Oct 2013. This action was launched by six landowners June Esposito, Maragaret Hutton, Sam De Maria, Daniel Massiaoli, Brian Smith, Jon Chesterson & Frank Talarico on behalf of the Class Applicants.

BREAKING NEWS !! Foster J in the Federal Court of Australia DISMISSES the Applicants cause of action in favor of the CTH, STATE, LOCAL GOV'ts & Foundation for National Parks.

HERE IS THE JUDGEMENT:

http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1440

This is a SHOCKING RESULT which PROVES Hegemony between the EXECUTIVE & the JUDICIARY. NO PRIVATE LAND IN AUSTRALIA IS IMMUNE FROM THIS DECISION.

The following brief was prepared as a "mud-map" for that legal challenge.

By Salvatore Scevola for the Shoalhaven Landowners Association

The Minister’s Decision is manifestly unreasonable. No reasonable decision maker would have taken such a decision to perpetuate an impasse for landowners, without putting in place the necessary Joint State and Federal Acquisition costs associated with refusing on ‘conservation grounds’. Essentially the Minister did not properly consider all of the information before him when he made his decision as the Objects of the EPBC Act make abundantly clear.

Objects of Act

(1) The objects of this Act are:

• to provide for the protection of the environment, especially those aspects of

• environment that are matters of national environmental significance; and

(b) to promote ecologically sustainable development through the conservation

and ecologically sustainable use of natural resources; and

(c) to promote the conservation of biodiversity; and

(ca) to provide for the protection and conservation of heritage; and

(d) to promote a co-operative approach to the protection and management of

the environment involving governments, the community,* land-holders and

indigenous peoples; and

(2)

(g) promotes a partnership approach to environmental protection

and biodiversity conservation through:

(i) bilateral agreements with States and Territories; and

*(ii) conservation agreements with land-holders; and

(iii) recognising and promoting indigenous peoples' role in, and

knowledge of, the conservation and ecologically sustainable use of biodiversity; and

(iv) the involvement of the community in management planning.

The proposal to rezone was placed through a PER (Public Environment Report) which represents the most rigorous assessment requirement of the EPBC Act under the “controlled Actions” category, This invoked provisions 18 and 18A of the Act as well as s75. The PER process is independently assessed and a report was presented to the Minister by UNSW Global Pty Limited, (Assessment of Public Environment Report for Heritage Estates for Department of the Environment, Water, Heritage and the Arts, dated 29 January 2009), it is a peer review requirement of the whole application process as per the Act particularly when utilizing Ministerial powers under s130 and s133 of the EPBC Act.

The ‘Caring for our Country’ grant or scheme as a result of the Inter Governmental Agreement or IGA is also invalid as it did not involve the landowners in any way shape or form. It was not a recommendation of the Minister’s decision of March 2009 (although it was devised back then) and was an application made by Shoalhaven City Council towards the end of 2011. If Council wanted to be compensated for land which they owned (streets, roads and land forfeited) it is for them to pursue and to decide, but the landowners (our members) were NEVER consulted in the application process and therefore the IGA is invalid, please refer to the Objects of the Act and in particular the clauses that MUST involve ‘land-owners’. The landowners were told as far back as 1991 (Affidavits of Talarico, Hutton & Esposito in correspondence with their State Members) that any Acquisition of their land for conservation purposes would be subject to the Just Terms provisions. The 1991 Land Acquisitions (Just Terms Compensation) Act in its objects uses the word “Guarantee” as a proposition to landholders, in that land transactions for ‘public purposes’ will be fair and just between the Government and landowners. Providing of course they are not seeking to circumvent the laws.

3 Objects of Act

(1) The objects of this Act are:

(a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and

(b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and

(c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and

(d) to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and

(e) to encourage the acquisition of land by agreement instead of compulsory process.

(2) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action.

It goes further to state in s38 that ‘Compensation entitlement if land (not available for public sale) acquired by agreement’

“An authority of the State is to take into account, in connection with any proposed acquisition by agreement of land not available for public sale, the same matters as are required to be taken into account under this Part in determining the compensation payable for an acquisition by compulsory process”.

It is designed and worded in this way for the public to have confidence in the system hence why these laws are given their widest possible context. Does any aspect of the “offer to sell” from the FNPW document constitute an “agreement” between the landowner and the State? If the answer is yes, then how have the provisions of the Act been respected and applied? According to Mrs Whitfield affidavit the State of NSW was quite happy to value her land above $30,000 for the purposes of Land Taxes in 2005, in other words as a value against which we can level taxes, it is valued high. For the purposes of State Acquisition it is valued at $500 The duplicitous actions of the State in this regard alone constitute the most egregious example of government abuse of power and influence which has resulted in ‘unjust enrichment’ on the part of the State. Even the very fact that the land if sold via the FNPW going into the Jervis Bay National Park JBNP, visitors at current numbers (400,00 per annum) paying the standard $12.00 entry fee raises in excess of $4,800,000 per year. Where is the value of the land included into this visitation park taken into consideration? If this were but the only ground upon which the Ministers decision is so flawed I shall now address the environmental factors that have been embellished to ensure that this land got included into the JPNP at the lowest possible price to the government. The environmental considerations of any importance located ON THE PROPERTY were two (2) species:

• One species in the endangered category (Eastern Bristlebird)

• and one in the vulnerable category (leafless tongue Orchid)

It states quite clearly in the PER that these species MAY have been impacted but even this is a very weak argument for the Minister’s refusal. The only phisical evidence of flora or fauna of any significance was the Eastern BristleBird and there were only two pairs at that. It was making the rezoning application subject to s26 and s27A of the EPBC Act that had provided the trigger for the Minister. And when weighed against the equitable interests of the landowners the Minister has opted for the ‘ongoing financial viability’ of Booderee National Park BNP. The rationale used throughout the objections by the proponents of the BNP was always the ‘financial viability’ of the Park “if it lost species”. There is a distance of 4.4klm or 48 square Kilometres between the Heritage Estates and BNP. There were additional wildlife corridors that were proposed by the COI (approx. 504 blocks removed) that reduced the number of residential blocks to be developed to 730. This use of the property as “AN ESSENTIAL WILDLIFE CORRIDOR” had already been canvassed and concluded hence the 730 rezoning approval. If the Heritage Estates presented such a significant threat to the BNP why didn’t the Stocklands Development also pose the same threat? It was 604 residential blocks interfering with an existing wildlife corridor and it was subject to the same s18 and 18A (Threatened & Migratory Species) of the EPBC Act and it was approved in spite of its detrimental environmental effects? Why were they excluded from the s26 and s27A requirements, their land is just 500 metres from ours? To make the Heritage Estate proposal subject to s75 provisions of the EPBC Act and not the Stocklands Estate flies in the face of all reasonable assumptions and says that the “impacts” are so great that they are almost a foregone conclusion in our case. This becomes yet another ground upon which the Minister’s decision becomes invalid as our proposal was not being judged on a level playing field. The rationale applied to the two separate proposals lodged just two (2) days apart is startling and perhaps the fact that the Stocklands Group donated $27,000 to the Federal Liberal Party in 2006/7 could be a more motivating factor?

Therefore we need to challenge the text, structure and purpose of the Act to ascertain if the Minister’s decision will hold up to our rigorous scrutiny. The Minister is obliged in making a decision that carries with it ‘mandatory considerations’ that must be satisfied if the decision is to withstand our challenge. At page 27 of the PER it reiterates and reminds this same message to the ‘decision maker’ by stating:

“Factors to be taken into account by the Minister also include the principles of ecologically sustainable development. The promotion of ecologically sustainable development through conservation and ecologically sustainable use of natural resources is one of the objects of the EPBC Act. The decision making process should effectively integrate both the long-term and short-term economic, environmental, social and equitable considerations” (my emphasis).

The PER In detailing the comprehensive history of this land and the issues related to the eventual COI (Commission of Enquiry) in 1999 which recommended approval of 730 residential blocks for rezoning and development, the Minister was presented with a development rezoning proposal that had a very strong advance on approval by the Council proposing it based heavily on its economic, social and equitable merits. It is more specifically on this ground of EQUITY or EQUITABLE outcome that the Minister should have applied to his decision that gives rise to his decision being invalid. The UNSW Document referred to at page 17, after comprehensively critiquing the whole draft and final PER it presents three alternatives for the Minister to consider:

• Joint Government Acquisition

• Biobanking, or

• The ‘do nothing’ approach

The Minister opted for No. 3 on that list. Two very important aspects of the PER were not taken into consideration when the Minister decided to refuse, 1) Was the alternative for conservation by using the land for its Biobanking capabilities, and 2) the Council strongly advised that a ‘do nothing’ alternative was “clearly unacceptable”. Item 4.4.2 of the PER clearly states that a Biobanking scheme:

“may be a feasible option for both conserving the land; and providing a remuneration fund for the landowners” In fact all of section 4 of the PER lists the alternatives for the Minister including 4.4.1:

“If the land cannot be developed because of its role in maintaining regional biodiversity, there could be an argument for joint State and Federal Government acquisition and inclusion of the land in the National Reserve System”.

In detailing why the ‘do nothing’ alternative is unacceptable to both the Council and the landholders, it employed the services of Judith Stubbs & Associates who carried out a thorough socio-economic study into the subject land with the emphasis on the EQUITY of the landowners. In fact it was a criticism of UNSW Document in their report of the PER that the Judith Stubbs report placed “too much emphasis” on the economic status of the landowners without the proper analysis it says was required of the council. In other words to the UNSW review of the PER no great ‘value’ was placed on the ongoing plight of the landowners. What was important in the economic sense were the numbers and a proposal in their eyes that would not create so many “environmental externalities” such as what was alleged if the rezoning were to proceed. In this regard appendix 1 of the UNSW review on page 19 of the document is quite revealing, it says:

“The option of conserving the subject land for its biodiversity and other values has a different set of costs and benefits. Under a conservation zoning, all land in the Heritage Estates would experience a de-valuation, essentially to a zero market value. This opportunity cost of the land is estimated at $22M.”

The summary goes further but the content of that statement is quite revealing. If the “opportunity cost” was $22M as stated then how do we get our grant figure in the IGA of $6M inc of GST give or take a few dollars? Why have the landowners been duped of an essential aspect of the value of this land, its Biobanking capabilities? This becomes another ground upon which the Minister’s decision is invalid. It is something that has not been at all addressed in any aspect of the Minister’s decision making process. Not in the correspondence of the Minister to June Esposito dated 27 March 2009, by the delegate on behalf of the Minister nor in any other correspondence since his decision. He notes just one report from the Council’s consultants who “also recommended against the proposed rezoning on environmental grounds”. This flies in the face of all the evidence that sought an “equitable” outcome of the process.

I have given substantial consideration to all of the items contained in this advice, and there is more. I will have to forensically examine the documents we have asked for in discovery of all the respondents, at which time I will be able to more accurately ascertain where things have or have not been done in accordance with the regulations.

If the court is to apply a common-sense approach to resolving this issue, the outcome we are seeking would be:

• The Minister’s decision to be declared invalid

• All acquisitions after the Minister’s decision date of 13 March 2009 to be declared invalid or null and void;

• The rezoning application of the 730 residential blocks to be reinstated immediately with Minister given a forty day (40) period to reassess the EPBC Application taking into consideration the Courts findings.

• The Council to be given after the Minister’s subsequent decision a further 40 days to assess and/or approve the residential rezoning, if not the matter can come back to the Land and Environment Court of NSW for determination.

• The 530 blocks quarantined for the wildlife corridor and ‘public conservation’ to be properly compensated under s38 of the Land Acquisitions (Just Terms Compensation) Act 1991 or s142 of the National Parks and Wildlife Act 1974.

• And Council to provide the funds for the provision of services (Utilities, Water, Gas, Power, Waste etc) in Lieu of the over $10Million dollars collected in rates from landowners over the years by using the “residential non-urban” rating classification.

This would represent the ONLY equitable outcome sought by all effected parties. Those who’s blocks will be developed will have the fruit of their labours and those who’s could not would be compensated by the State who would acquire their land for a public purpose.