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Council not liable if West Yamba rezoned

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Legal advice received by Clarence Valley Council indicates it would not be liable to pay compensation to landowners at West Yamba if their properties were rezoned preventing development.

At the December 13 CVC meeting, Deputy Mayor Greg Clancy put forward a motion to investigate whether council would be liable when and if the NSW Planning Minister was to rezone vacant lands that have not had DA approval for development on the Yamba floodplain (WYURA) from R1 General Residential to RU2 Rural landscape and C2 Environmental Conservation zonings at Council’s request.

The other parts of Cr Clancy’s motion asked council to seek advice whether compensation becomes liable if land previously approved for the importation of fill was to be similarly rezoned; and whether there are any other legal implications of such an action.

At the Yamba Community Action Network Yamba CAN meeting on February 21, Cr Clancy advised the meeting he had received advice from solicitor, former CEO of the Environmental Defenders Office and Greens MLC, Sue Higginson, that there was no obligation to pay compensation if you rezone someone’s land.

CVC Director Environment and Planning Adam Cameron wrote to Local Government Legal to seek advice on Cr Clancy’s motion and any potential legal implications.

Local Government Legal advised CVC they could be liable for compensation for rezoning vacant land reserved for public purposes.

“The only statutory recourse that has been provided to such persons is relevant only if the rezoning results in the subject land being reserved for use for the purposes of open space, a public place or public reserve within the meaning of the Local Government Act 1993, a national park or other land reserved or dedicated under the National Parks and Wildlife Act 1974, a public cemetery, a public hospital, a public railway, a public school or any other purpose that is prescribed as a public purpose,” Local Government Legal’s Mark Cottam wrote.

“We consider that Council cannot be held liable for compensation for rezoning vacant lands.

“The only potential liability arises where the rezoning is for a public purpose (such as open space).

“Given our view that no liability for compensation is likely to arise in circumstances where vacant lands are rezoned (where the implications for landowners may, generally, be greater), we hold the same view in relation to liability for lands with existing approvals.”

Council staff recommended councillors take note of the legal advice.

Clarence Valley Independent 1 March 2023

This article appeared in the Clarence Valley Independent, 1 March 2023.

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