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Why would a council sell a wetland for less than its market value and even hide its biodiversity value from its own valuer – it doesn’t make sense but that is exactly what happened on the NSW Central Coast in 2021 – then, in 2022, the land was unlawfully cleared.
By Jacquelene Pearson
The fate of Spring Creek Wetland on the NSW Central Coast is a tangled tale but it shows how easy it is for an important public environmental asset to be lost. It’s a saga that started back in 2014 when the Wyong Shire Council decided to purchase land at Doyalson that included a wetland. The decision was made because the council wanted to build an airport at nearby Kiar Ridge.
The construction of the airport would have involved clearing native vegetation. The council knew the NSW Biodiversity Conservation Act would soon be introduced and it might need to “offset” the land it intended to clear for its airport with comparable bushland.
The Doyalson land included Spring Creek Wetland. In June 2014 a director’s report presented to Wyong Shire Council recommended the purchase of land at Thompson Vale Road, Doyalson from Woodbury Park Pty Ltd.
Council’s General Manager negotiated with Terrace Towers Group over the purchase of the lands at Doyalson and 11 other lots at Jilliby. The Terrace Towers Group approached the Wyong Shire Council offering to sell the Jilliby and Doyalson holdings.
The June 2014 report to a Wyong Council meeting noted the purchase price of $7 million for the land.
Over-priced
In 2014 the Doyalson land was described as located in an area of strategic importance to the council and likely to provide “opportunities for future employment and environmental offset lands”.
The total cost to Wyong Shire was $7 million for the Doyalson property. At the time, former Wyong Mayor and independent Councillor, Bob Graham’s, opposition to the deal resulted in the then Mayor, Doug Eaton, making a Code of Conduct complaint against him.
Graham responded with a media release that said he considered the transaction a “speculative land deal”.
On 12 January 2015, around six months after the property deal, General Manager of Wyong Shire Council, Michael Whittaker, wrote to councillors and staff to inform them that Terrace Towers Group Chief Executive Officer, Mike Dowling, had been appointed as the council’s Director of Property and Development.
The conservation value of the Doyalson land had been identified by the Wyong Council as early as 2003/04 when its State of Environment Report (SoE) said Spring Creek Wetland helped to drain the Wallarah Creek catchment and was an area of significant biodiversity with many threatened plant and animal species.
The SoE said the ridges and slopes were covered in a woodland type found only in the north of the shire and 51percent of this vegetation type had been lost to the region.
The Spring Creek system was characterised by low nutrients and Gilgi soils. Flora and fauna surveys confirmed that the Spring Creek Wetland system was in excellent health at that time. Water quality data indicated that the catchment contained low phosphorus levels making it particularly vulnerable to the impacts of development.
The Spring Creek Wetland system had a distinctive fine scale structure that was and is increasingly rare. The system was vital to the health of the Tuggerah Lakes, according to the SoE. Clearing or development of the wetland could increase nutrient flows into the Tuggerah Lakes system by 600 percent, the SoE report declared.
Desperate measures
Wyong Shire Council was merged with Gosford City Council to form the Central Coast Council in May 2016. Councillors from both were sacked and replaced with an administrator. Mike Dowling stayed on for a couple of years as Group Leader (director) of Assets, Infrastructure and Business.
The Doyalson land remained in council ownership through amalgamation and the studies undertaken indicated its value to the health of the Tuggerah Lakes.
By 2020 Central Coast Council was facing a cashflow crisis. In October 2020 the councillors were blamed and suspended by the NSW Government. An Interim Administrator and acting CEO were installed. Services were cut, jobs chopped, rates increased, money borrowed and assets, including public land, sold.
Interim Administrator, Dick Persson AM, and acting CEO, Rik Hart, promised the public they would not sell environmental land or sell land for less than its market value. They broke both promises.
The Doyalson land, including the Spring Creek Wetland, ended up being sold despite appeals from the community.
Approximately 20 per cent of the land was zoned C2 Conservation, the highest level of protection outside of a national park or nature reserve.
Community ignored
Central Coast Council withheld information from the public, and its valuers, about the environmental value of the land, and calls from several community groups for an independent investigation of the sale were ignored.
In late 2020, as some Central Coast Council staff were recommending the sale of the Doyalson land, other staff had prepared a draft Biodiversity Stewardship Site Assessment Report confirming the environmental significance of the land.
Minister for the Central Coast and Member for Wyong, Mr David Harris, said in 2023 he had held concerns regarding the Doyalson land that flowed back to its original purchase by Wyong Shire Council and subsequent lease by Wyong Coal, proponent of the Wallarah 2 coal mine.
Stewardship
Chair of the Community Environment Network (CEN), Mr Gary Chestnut, said documents released to Truepenny Media, publishers of Central Coast Daily News and The Point ESG News Site under Government Information Public Access (GIPA) laws showed the council spent significant staff resources between 2018 and 2020 to prepare a stewardship agreement that would’ve resulted in the perpetual protection of the wetland.
Meanwhile, another part of the council described it as “surplus to needs” and recommended its sale with a note about its potential biodiversity value hidden in the detail.
Mr Chestnut said two of the documents released via GIPA indicated that the Doyalson land was potential habitat for up to 19 threatened species and should not have been sold, no matter how dire council’s financial situation.
“It has to be one of the highest value pieces of environmental land on the Central Coast because it is a potential home to 19 threatened species,” Mr Chestnut said.
Mr Chestnut used a Biodiversity Credits Pricing Spreadsheet, also released via GIPA, to calculate the value of the land in biodiversity credits. He came up with a ballpark figure of $2.7 million.
The land including the wetland that was acquired by Wyong Council in 2014 for $7 million ended up being sold by Central Coast Council in July 2022 for $5.5 million.
“The council could have received long-term funding from the state to care for the land,” Mr Chestnut said. “The Biodiversity Conservation Trust (BCT) would hold the $2.7 million in an account and would give the council money each year in perpetuity to care for the land,” he said.
The draft site assessment was prepared by a qualified member of council’s staff to determine the land’s biodiversity value. Twelve months later a council director denied the council had prepared the assessment.
The executive summary of the draft site assessment said the council intended to enter a Biodiversity Stewardship Agreement with the NSW Biodiversity Conservation Trust (BCT) for part of a 152.54-hectare parcel of council-owned land over eight lots near Doyalson.
“The site is known as the ‘Thompson Vale Road Reserve Stewardship Site’. The reserve is R0398 in Council’s natural asset system,” the draft report said.
Council refused to answer questions from CEN about who, within the ranks of its senior management, knew about the high conservation value of the land when they decided to put it on the market.
Council’s CEO, David Farmer, said: “Council’s land sale program was commenced and undertaken under significant financial duress, and at the direction of a third-party lender, which required the land sale program to commence and reach critical thresholds at extreme pace.”
“In relation to the suggestion that the sale of land at Thompson Vale Road Doyalson that further value could have been extracted by applying potentially available biodiversity or ecosystem credits to the land, it should be noted that the existence of potential ecosystem credits does not equate to the actual application of those credits.”
He said council staff acted “in good faith” when instructing the valuer and “adequate briefing information was provided to form the assessment of the value of the land. It is not accurate to consider that the Central Coast community ‘lost’ any sum of money by council pursuing the transaction in the manner it did”.
According to the documents obtained by Truepenny Media, the amount of unencumbered land at Doyalson was overstated. Mapping indicates that, rather than 50 hectares of unencumbered land, the amount that could be developed without requiring biodiversity offsets would be closer to five hectares.
CEN’s Chair, Gary Chestnut, said that fact should have been disclosed to the purchaser.
Challenging the sale
Mr Chestnut said he was shocked when he realised, after Dick Persson resolved to sell the Doyalson land, that it was land he had urged council to add to its unique Coastal Open Space System (COSS) of natural reserves.
Chestnut said he did everything he could to urge Persson and council executives to take the Doyalson land off the market.
CEN started writing to Mr Persson and NSW Government ministers before Christmas 2020 urging them to withdraw the land from sale. The correspondence between CEN, council and the NSW Government continued for years.
Mr Chestnut spoke at the council’s first 2021 meeting, drawing the Interim Administrator’s attention to minutes from the COSS Advisory Committee because they highlighted “the concern of the committee on the implications on the sale of environmentally sensitive land at Thompson Vale Road”.
Mannering Park Progress Association wrote to Mr Persson in early 2021: “Mannering Park Progress is deeply concerned that you have seen fit to list environmental lands that form part of the east west environmental corridor for native fauna as well as protection for endangered flora in Thompson Vale Road, Doyalson, for sale. We respectfully ask you to please remove this listing…”
By May 2021, Persson had left the council and Rik Hart moved from ACEO to Administrator. Mr Chestnut led a delegation of concerned residents to meet Mr Hart about the asset sales.
In September 2021, Chestnut wrote to council’s then-director of environment and planning.
Chestnut asked the director to answer questions including the criteria used by council staff to select assets for sale. The director referred the letter back to council’s property and economic development team.
At the end of September 2021, a member of the COSS consultative committee, Mr Paul Links, was blocked from speaking at council because the asset disposal matter had already been debated.
Mr Links was going to tell council that the Doyalson land “held high biodiversity conservation value… “It is poor governance for a council to sell environmental land to pay down debt. It would be negligent of administrators to sell this land for less than what council originally paid.”
By that stage the Doyalson land was “under offer”. Time was running out. The correspondence continued to fly between CEN and council.
In November 2021, CEN called for an independent inquiry into the sale of the Doyalson land. Council had wrapped the whole transaction in “commercial in confidence” and would not disclose the name of the purchaser, the purchase price or any other details.
In December 2021, Mr Hart informed Mr Chestnut that: “Council has now considered the position of CEN, as well as your own personal representations of numerous occasions in relation to this matter. Unfortunately, it is unlikely we will reach any agreement given our opposing views. I consider this matter now closed and respectfully request that you accept that we have investigated and heard your opinions.”
Sold!
In July 2022, council noted that the land had been sold for $5.5 million and published its valuer’s report. The valuer had been instructed to produce a market valuation on an ‘as is’ or ‘as if complete’ basis on the assumption that the property was “free of contamination and biodiversity issues…”
The valuation report was dated March 2021. It recommended council undertake biodiversity certification studies to “determine whether any biodiversity credits are available”. It appears the valuer was never told about the studies that had been completed to ascertain the land’s biodiversity value.
Access to information
As Mr Chestnut continued to correspond with council, the administrator, Office of Local Government and Minister for Local Government, Truepenny Media decided to lodge a GIPA application with council to access documents related to the Doyalson sale.
Council refused to provide any documents on the basis that it would not be in the public interest. They acknowledged the existence of a: Biodiversity Stewardship Site Assessment Report (BSSA); instructions for completing the Biodiversity Stewardship Site Management Plan (BSSMP) template; a desktop site review; Thompson Vale Preliminary site investigation; a total fund deposit worksheet; and a tax invoice.
We appealed to the Privacy Commissioner who instructed council to review its decision. Council acknowledged its initial reasons for refusing to release the documents were not well founded but, rather than releasing the documents, it found another reason to refuse their release.
We appealed to the NSW Consumer and Administrative Tribunal (NCAT). We agreed to mediation after an initial hearing. The morning before the mediation, council agreed to release all documents.
Cleared
In September 2022 the Department of Planning and Environment received a report of unauthorised native vegetation clearing at the Doyalson property. It issued a Stop Work Order under Section 11.3 of the Biodiversity Conservation Act 2016.
“The property is designated on the in force Native Vegetation Regulatory Map, prepared pursuant to the Local Land Services Act as Category 2 – Sensitive Regulated Land.”
The Department of Planning and Environment told Truepenny Media the order halted any further clearing. The landholder was issued with a fine. Truepenny Media has asked for an update on the amount of land that was cleared, the sum of the fines and the current status of the land. We await a response from NSW Environment.
Waiting for answers
The Community Environment Network, members of council’s own COSS consultative committee (which has since been disbanded), Mannering Park Progress and at least one council whistleblower, believed an independent investigation of the Thompson Vale Road land sale was warranted.
“I am not implying that Rik Hart or Dick Persson did anything wrong but for the sake of transparency and public trust the community is entitled to know how and why a decision to sell highly sensitive and valuable environmental land was made,” Mr Chestnut said.
“There may not have been a signed biodiversity agreement with the BCT but council should have clearly informed the community they were working on one. They should have called a spade a spade – said ‘look we have been assessing this land but it needs to be sold’. If the council had said that, fine, but they have constantly said it is not of environmental value.
“There is a responsibility on a council to disclose all relevant information. We must have checks and balances. Someone must’ve signed off on the report that said it was OK to sell this land. Who instructed the property team to include that the sale would mean the potential loss of a biodiversity stewardship site?
“The urgency has now passed. Council’s financial viability has been restored. It should repurchase this land and dedicate it to COSS,” Mr Chestnut said.
Loss not quantified
Spring Creek Wetland remains in private ownership, inaccessible to the public. Even Central Coast Council’s environmental team has no way of assessing the extent of clearing or whether any rehabilitation has taken place.
It’s a long and complicated saga but the fate of Spring Creek demonstrates how easily a region can lose a significant and ecologically valuable wetland. In Gary Chestnut’s words, the Spring Creek Wetland system had “very, very low phosphate levels, extremely low and so therefore, because of that, it was actually a filter or a kidney to the lake system.”
The lake system he refers to is Tuggerah Lakes, one of the state’s largest and most significant system of ICOLLS (Intermittent Closing and Opening Lake/Lagoon Systems). According to Central Coast Council’s Waterways website, “trees and plants are the natural filters of an estuary. They slow water flow, absorb nutrients, settle out sediment and provide a home to a vast array of native animals and insects.
“The loss of vegetation from streambanks, wetlands and foreshores has increased the amount of sediment and pollution that washes into the estuary.
“Instead of water flowing slowly across the landscape and filtering into the groundwater, channels and hard surfaces speed up the water flow, and direct it – along with the pollution it carries – straight into the lakes.”
Council has set about growing new wetlands and building treatment devices into its stormwater network, but the environmental consequences of the sale and unlawful clearing of Spring Creek Wetland remain a mystery.
“We are aware that the … relevant branch in government commenced an investigation. The investigation did identify that unlawful clearing of the threatened species had occurred, but they just gave them a token fine,” Mr Chestnut said.
“The only option is to put it back in public ownership, and it actually has been suggested at different times that council should repurchase the land. But it would have to purchase it at market value. And I’m quite sure the market value is not going to be $5.5 million. It’ll most probably be double that value.
“CEN believes Council needs to explain its actions to the public, repurchase the land, classify it as community land and complete the work we now know it had started to protect the land through biocertification. We have written to Mr Farmer and the Local Government Minister multiple times about this matter and we await their explanation.”
The Point ESG News Site wishes to acknowledge funding from the Local Independent News Association (LINA) to assist in the production of the Saving Our Wetlands series.
