The ruling by the NSW Land and Environment Court in the case brought by John and Ann Vaughan against the Byron Bay Council sets a precedent in Australian law by defining financial responsibilities for protection of properties that have been allowed by councils to be built in high-risk areas. Those wishing to read more about this case can click here to read a review of the decision by environmental lawyers Rebecca Dixon and Rosemary Lyster of Mallesons Stephens Jacques.
Here on Bribie Island, many properties have been allowed to be developed on lands facing various risks. In this weeks posting, MyBribieIsland looks at what those risks are, what lands are at risk, and who has been accepting financial responsibility for dealing with those risks. MBI looks at whether there is any consistency in the ways that the financial responsibilities for this risk-protection are being passed on.
WHO IS ASSUMING THE FINANCIAL RESPONSIBILITY FOR PROTECTION OF PROPERTIES IN HIGH-RISK AREAS ON BRIBIE ISLAND?
WHAT ARE THE RISKS?
There have been various efforts made to define the risks and threats faced by property owners on Bribie Island. In 2009, Moreton Bay Regional Council commissioned Climate Risk Pty Ltd to prepare a study Scoping Climate Change for MBRC. This outlines the risks that are primarily due to climate change and storm surges. Readers can click here for a copy.
In 2010, The Australian Government through the South East Queensland Climate Adaptation Research Initiative (SEQ-CARI) produced a study Climate change adaptation in South East Queensland human settlements: Issues and context. This study looked at risks and threats and adaptation options. This was a collaborative effort between Griffith University, CSIRO, University of the Sunshine Coast, Queensland Government and the University of Queensland. It confirms many of the conclusions of the MBRC study. This is quite a large file and is split into two parts for ease of downloading. Readers can click here for a copy of Part 1 and click here for a copy of Part 2.
In May 2010, SEQ Catchments and University of the Sunshine Coast undertook an extensive community consultation process on Bribie Island to produce its study Climate Proofing Bribie – A Climate Adaptation Action Plan. This study focused specifically on risks and threats on Bribie, and includes action plans for those areas that are evaluated as being at risk. It was accepted on behalf of MBRC by Gary Parsons (Division 1 Councillor) and Tony Martini (Director, Engineering, Construction and Maintenance) and its findings and recommendations have been incorporated into various Council studies (eg Pumicestone Passage Shoreline Erosion Management Plan (See Below)) . Readers can click here for a copy of SEQ Catchment’s report.
Other reports of interest include the Woorim Beach Shoreline Erosion Management Plan (WBSEMP) that was compiled in 2006 by marine engineering consultants BMT WBM in conjunction with a wide range of interested community groups. As the name suggests, this focused on erosion issues along the eastern side on Bribie Island – particularly the area south from Eighth Avenue. This is also a large file and has been split into two parts for ease of downloading. Click here for Chapters 1-3 of the BMT WBM report and click here for Chapters 4-6. A similar report, titled Southern Pumicestone Passage Shoreline Erosion Management Plan, was prepared by marine engineering consultants GHD. This focuses on erosion issues along the Pumicestone shoreline. In preparing their report, GHD were prohibited by MBRC from consulting with affected locals on local issues and this detracts greatly from the final report. Readers can download a copy from the link www.moretonbay.qld.gov.au/BribieSEMP/
These studies and reports show that the major threats facing Bribie are:
- Inundation due to storm surge (the 1-in-100-year storm surge is expected to affect over 60% of residences)
- Erosion due to long shore currents
- Sea level rise due to climate change (making the effect of the above two items even worse)
- Threats from failure of infrastructure (eg downing of powerlines in storm events; sewage treatment plants failing to meet increases in volume)
While these reports outline some of the actions that can be taken to accommodate these risks and minimize their impact, in general the reports are fairly vague on who should be responsible for assuming these risks and who should pay for those actions. So just who is paying or who is expected to pay?
WHAT PROPERTIES ARE AT RISK
These reports show that both public and private properties are at risk. However there is no question about who is responsible for public properties such as National Parks, Nature Reserves, dunes and foreshore areas, erosion control reserves, foreshore parkland, and public infrastructure such as boat-ramps. These are the responsibility of the level of government that owns them and/or manages them. But what about private properties and the cost of risk mitigation and the cost of remediation after damaging events on those private properties that are at risk? And what about the damage occurring on private property as a result of the way public property is managed? These private properties that are at risk include:
- Waterfront property at risk from erosion on Moreton Bay side of Bribie (Woorim area) – particularly property built closer to the water than the 150 metre setback recommended by Department of Environment and Resource Management (DERM) or whatever it is called now.
- Waterfront property on Pumicestone Passage side of Bribie – particularly any property built closer to the water than the recommended 150 metre setback
- Waterfront property in canal developments at risk from erosion and/or storm surges
- Near-waterfront property at risk from potential storm surge breakthroughs
- Property at risk due to such issues as proximity to man-made structures (eg powerlines, sewer lines, etc)
- Property at risk due to proximity to fire hazards.
WHAT IS BEING DONE TO PROTECT THESE PROPERTIES AND WHO IS PAYING?
To answer these questions, it is easiest to go through each category and answer the question category by category.
Erosion of property on Woorim side of Bribie: As noted in the WBSEMP, there is a strong north-to-south longshore current along the eastern coast of Bribie. The WBSEMP also notes that as development in the area south from 8th Avenue has increased, there has been increasing destabilization of the dunes primarily due to human interference and this has led to accelerated erosion. The WBSEMP shows that at least 50 – 80 metres of coast have been lost since WWII. But there has been an even greater rate of erosion in areas south of Woorim since the late 2000’s as a consequence of inappropriate placement of sand during the MBRC’s sand replenishment programmes. Those wishing to read more about those issues can about them in the Moreton Bay Journal at http://bayjournal.com.au/joomla/bayjournal/environment/2398-state-of-play-on-woorim-beach-qunprecedented-erosionq.html; http://bayjournal.com.au/joomla/bayjournal/environment/2432-woorim-beach-state-of-play-2.html; and http://bayjournal.com.au/joomla/bayjournal/environment/2460-woorim-beach-state-of-play-3.html
The bulk of the property along this coastline is publicly owned so there is no question about who is responsible for maintenance and risk abatement. Responsibility rests with either the State Government on lands such as National Parks and Nature Reserves, or MBRC on Council-owned lands and State Lands held in trust by Council.
There are a number of commercial properties in the Woorim township area that have been allowed to be developed within the recommended 150 metre buffer zone. There are an additional 28 privately owned properties along Rickman Parade that are also within this 150 metre zone. In the case Vaughan v’s Byron Bay Council, the litigants won the right to undertake remedial work at their own cost if they had objections to the actions being taken by Council. However, in the case of Woorim landholders owning property within the high-risk 150 metre buffer zone, MBRC has made it clear by their actions that MBRC will assume all those risk-remediation and maintenance costs. This is demonstrated in the photos below.
The WBSEMP estimated that approximately 30,000 cubic metres per year of sand is being eroded from the foreshore in the Woorim area and that this needs to be replaced by sand replenishment to stop further foreshore loss. The WBSEMP recommended an initial placement of 300,000 cubic metres of sand from 8th Avenue south to the Koolamara Entrance. Instead of following this recommendation, all the initial sand in 2008 was placed in front of Rickman Parade to protect those residences. In subsequent years, further sand was placed in front of Woorim village creating a pronounced sand groyne. This groyne has had disastrous consequences for those areas south of the Woorim Surf Club just as was predicted in the WBSEMP. Apart from a small amount of sand placed in the last replenishment programme in 2011, virtually no sand has been placed south of the Woorim Surf Club. It is not known who changed the sand replacement strategy that is outlined in the WBSEMP as the original consultants BMT WBM have not been consulted or had any input since their document was turned over to Council in 2007. Despite the massive erosion caused by the inappropriate sand placement, the MBRC Director of Asset Maintenance and Construction advises in an e-mail that… “the Bribie sand replenishment programme has been one of the most successful undertaken on the east coast”. In comments to the Caboolture Shire Herald, Councillor Parsons also indicates his complete support for these changed actions http://caboolture-shire-herald.whereilive.com.au/news/story/mp-slams-woorim-sand-pumping-strategy/
Waterfront property along Pumicestone Passage: Virtually all the property on the Pumicestone side of Bribie is public property and therefore the maintenance and risk mitigation is a Council and/or State responsibility. This is made clear in the Pumicestone SEMP. However, there are some private properties within the 150 metre setback on both sides of Pumicestone. Recent actions by Council along the mainland side of Pumicestone indicate that, just as along Rickman Parade, Council is assuming all responsibility for those private properties that are at risk.
Near-waterfront property at risk from storm surge: Both the MBRC and the Federal Government studies referred to above indicate that over 60% of residences on Bribie are at risk from a 1-in-100 year storm surge. Normally it would be expected that there would be State and/or Federal Government assistance available if such a catastrophe were to occur. This was the case, say, for damages by major events such as Cyclone Yasi and the Brisbane floods of 2011. However, in the case of Bribie, this is not all that clearcut.
When MBRC went ahead with the dune-lowering project at Woorim in 2009, it agreed to assume all responsibility for all consequential damage arising from that decision. That project lowered the dunes to around RL6 which is about the same height as the major storm surge of mid-1990’s. MBI understands that at the time the dune was lowered, the State Government made it clear that MBRC (and hence ratepayers) would be responsible for all reparations and property damage that might result from any future storm breakthroughs. A similar situation exists along Boyd Street in the Edwin Schrag Erosion Control Reserve. What was supposed to be a temporary widened access to the beach for heavy machinery has also reduced the dune height to around RL6. That temporary access would now appear to be permanent and it puts at risk all those properties along Boyd Street.
It is unfortunate that Council has not made this heightened breakthrough risk clear to those property owners that are now at risk. In addition, if Council has now assumed all risks for damages as a consequence of the dune-lowering project, then it should be informing ratepayers that it has assumed that responsibility. After all, Council’s own report estimates that 60% of properties on Bribie are at risk from a 1-in-100-storm surge and if that is true, this has the potential to be a massive liability.
Waterfront properties in canal developments: There are two major canal developments on Bribie – the Bribie Gardens Canal Development and the Pacific Harbour Canal Development. These were developed at different times by different developers. Both were turned over to Council after completion and Council accepted ongoing responsibility at that time. Documents obtained by canal property owners under Right To Information (RTI), and made available to MBI, show that at the time of turnover there were no noted deficiencies. Records show that although there have been ongoing inspections and surveys undertaken by Council since turnover, virtually no maintenance has been undertaken. Those internal documents show that Council acknowledges it has a responsibility for maintenance of canal properties. In acknowledging this responsibility, these documents show that Council has been considering a canal levy since 2010 to cover those costs. Click here for a copy of correspondence on the subject between the CEO of MBRC and the Director of Engineering, Construction and Maintenance.
It is not known why canal properties should be treated differently to properties fronting Moreton Bay and Pumicestone Passage. Council has assumed responsibility for all costs for ocean-front properties, but not for canal properties. Instead, Council proposes a special levy for canal owners, but not for owners of ocean-front properties. It is not known either why the incumbent Mayor and the Division 1 Councillor did not make the possibility of this canal levy known to voters in the last election. This levy has been under discussions since 2010 as can be seen from the MBRC documents referred to above. The Mayor and the Division 1 Councillor would have known (or should have known) of this proposed levy. It can also be seen from these documents that Council is aware of a number of wall failures along the Banksia canals. The documents show that Council’s Legal Department and insurers have been advised about these failures but Council does not appear to have advised those property owners about these failures. These are issues that the Canal Associations should be taking up with their elected representatives.
Other property at risk: These are properties at risk due to proximity to hazards such as powerlines, sewer lines and bushland. They comprise only a small portion of Bribie residences. The cost of risk abatement on public lands is assumed by Council and/or the State Government and/or the appropriate utility. Risk abatement on private land is essentially the responsibility of the property owner. Where private property is impacted by actions on public lands (e.g. power lines falling onto private property; or sink holes formed by collapse of sewer lines) those private property owners are protected from those fix-up costs.
It is of concern to MBI to note that some of the fire-risk abatement activities of Council are 50 years out of date for the types of fires experienced on Bribie. Some of the practices currently employed were shown to be ineffective in the report on Black Tuesday in Tasmania in 1968 and Ash Wednesday in Victoria in 1983. This will be the subject of discussion in a future MBI article.
WHY ARE THERE DIFFERENCES IN THE WAY THESE COSTS ARE ASSUMED?
The way that these risks are handled is entirely at the discretion of Council and the Division 1 Councillor. MBI has no idea why there are differences.
WHAT CAN BE DONE TO ENSURE ALL PROPERTIES ARE TREATED THE SAME WAY?
As noted above, the way that these risks are handled is entirely at the discretion of Council and the Division 1 Councillor. The only way any change will occur is if enough people ask for change. MBI encourages those who may have concerns on these matters to contact their Mayor and/or Councillor and/or some of the groups who are actively working on these issues. These include:
Allan Sutherland (MBRC Mayor) 0417 769 302 or email@example.com; Gary Parsons (Div 1 Councillor) 0407 629 002 or firstname.lastname@example.org; Trevor (Bribie Island Community Association) 3410 1884; Dennis (Ratepayers Action Group) email@example.com; David (Friends of Woorim Beach) 3410 1771; Kevin (Bribie Gardens Canal Association) firstname.lastname@example.org; David (Pacific Harbour Canal Association) email@example.com and Herb (Sandstone Point Community Association) firstname.lastname@example.org