Magnetic Island North Queensland
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A young koala's beach adventure

April 5th 2011
TCC’s Radical decision raises questions over DERM's role

A king tide washes over Radical's foredune Rejecting Juniper's application for a 24 lot gated community development at Radical Bay recently, Townsville City Council has taken a major and principled stand which may well become a landmark indicator for the future of coastal development on the Queensland and Australian coast.

But while the councillors leading the charge, Vern Veitch and Magnetic Island’s Trevor Roberts, have done their best in protecting ratepayers from what they see as huge, climate change-related, future liabilities, DERM, who advised Council to allow the project to proceed, were in for a little flack from Cr Veitch.

Cr Veitch said, “Coastal erosion at Radical Bay has the potential to endanger lives and coastal infrastructure (including Council’s) and or property”

Council’s Planning and Environment Committee had previously recommended the project be rejected on the grounds that the proposed development conditions did not adequately deal with the issue of the access track.

But Cr Veitch, supported in Council by Magnetic Island Councillor Trevor Roberts, went further. He told Magnetic Times, “I’m quite concerned that the foredune at Radical has been compromised since Cyclone Yasi and it could be that the swale (depression behind the beach) could become the new beach,” he said.

“It’s quite realistic that we could see a 0.5 metre rise in sea levels in the next 50 years and the existing swale could become the new beach.”

In his motion, Cr Veitch cited TCC’s City Plan’s Desired Environmental Outcomes which seek to, “Ensure development is planned to reduce the risks of loss of life, injury, property damage resulting from landslip, flooding, bushfire, cyclones and other emergencies or disasters.”

Council’s rejection of the plan, has led to Juniper now saying they will appeal the decision in the Planning and Environment Court.

Cr Veitch said he thought DERM made an error. “DERM should have realised that all the data used (to assess the beach for possible future erosion) was from consultant’s reports from 2009.”

In January 2010 the beach at Radical was subject to a wind-driven king tide which washed in over the frontal dune.

“DERM’s response (advice to TCC) was well after that,” said Cr Veitch.

DERM’s Regional Services Manager, Mr Andrew Buckley, responded in writing, four days after being contacted, "DERM assessed the proposal to develop Radical Bay...(and) classified that the area was erosion-prone and made a requirement that no (our italics) development should go ahead there.”

No development at Radical Bay! This seemed very odd coming from the body which had issued a permit for the project. We asked DERM to explain and after six days deliberation we learned that, "DERM’s advice to TCC included a requirement that no development is to occur in the erosion prone area."

Sadly our efforts to try and provide taxpayers with a better understanding of DERM's perspective on this, likely, landmark decision, resulted in a statement of the obvious. Every beach has an erosion prone area where no development can occur.

DERM had however made an inspection on 12 February 2010, just after the beach-breaking king tides that year. But one wonders what they were doing. The king tide had clearly overtopped the frontal dune (see photo at top) and Magnetic Times’ own documentation shows a significant shift with the beach moving inland and significantly eroding the foredune vegetation.

DERM’s permit refers to an inspection represented by “DERM staff including vegetation management officers." There's no mention of any coastal geographers and this may explain why the impacts of the king tide didn't appear to matter when DERM decided where the crucial line from which the Erosion Prone Area was to be measured.

In 2002 the state government accepted a reduction in the width of the erosion prone area at Radical Bay from 95 metres to 60metres. This followed a report and recommendation from Juniper's expert consultants, Coastal Engineering Solutions (CES) who obligingly provided an image of exactly where, along the beach, this erosion prone area should be measured from. It's called the "toe of the foredune" (see below). By 2009 however it appears that the "toe" had taken a walk down the beach to where Junipers surveyors, Brazier Motti, called it the "toe of the frontal dune". It now lay near the bottom of the beach - or about another 15 metres closer to the water's edge.

CES's 2002 line showing the "toe of the foredune"

So, with nearly half of the old erosion prone area gone and in a time when rising sea levels and storms of greater intensity are predicted, and when the vegetation's edge had shifted inland, DERM's experts agreed to what looks like a compromise: a new line about midway between the two toes. They called it the "top of bank", a term which seems to only occur in references to rivers and creeks.

The "Top of bank" has been drawn in on the Brazier Motti map as a dark green line along the beach between the scalloped green vegetation line which might accurately depict the former "toe of foredune" line, and the faintly noted "Toe of frontal dune" further out to sea.

If DERM were to stick with the definition of what the “toe of the foredune” meant in 2002, when Juniper’s experts, CES, convinced the government into removing 35 metres of the buffer, and then compare it to what happened after the 2010 king tides we might have a very different outcome.

Following is a photograph taken by Magnetic Times when a public demonstration in 2002 was being staged on the beach. A small coconut tree (lower left centre) is well forward of all the others. That same tree in CES’s 2002 photo documentation (above) is directly crossed by the line that defines the “toe of the foredune”.

The following photo, taken from almost the same location shows how the beach looked after the king tides in 2010. The young coconut has gone as has the shrub beside it and in a further overlay we see, approximately how far the beach had moved. Why DERM would then agree to a “top of bank” starting line for the erosion prone area which, instead of responding to new conditions, goes further out to sea, is baffling.

Following is an overlay to show approximately how far the beach had moved between 2002 and 2010 and while the experts describe long term and short term erosion impacts the material revealed by CES in 2002 included mapping and aerial photos going back to World War II. Part of their argument for drawing the line at their “toe” and making the erosion prone area 60 metres wide was based on historical information showing the beach was relatively stable along this line for many years prior.

The red dotted line follows the 2002 CES drawn toe of the foredune while the green dotted line shows the post 2010 king tide edge of terrestrial vegetation which was the basis for the CES location of their toe.

But since the king tides of last year and the ravages of Cyclone Yasi, Radical has radically changed shape.

The red line approximates the position of the green dotted line above showing far greater incursions since Cyclone Yasi.

Cr Veitch is also concerned that, should the development occur, the cost to Council of fixing the erosion would be “substantial”.

“You can’t just get sand from anywhere and truck it into the beach. It’s more likely it would need to be barged in and that would be a very high cost to rate payers and we shouldn’t impose that.”

Cr Veitch went on to say, “I think this is going to be a trend right along the coast.” adding, “The Premier has said that a lot more thought needs to be put into planning and I think this is the sort of response likely to be seen.

“If Yasi had come in 8 hours earlier or 16 hours later or had been 50 kms closer there would have been a big difference across the whole council area.”

Story and hill vantage point imagery: George Hirst

To add your comment,
or read those of others, see below

TCC’s Radical decision raises questions over DERM's role
Wendy Tubman
April 5th 2011
Congratulations to Townsville City Council, in particular to Crs Veitch and Roberts, for their decision not to approve developer Juniper’s application to create 24 residential lots at Radical Bay. This is certainly a right and proper decision, and neither the Council nor the Councillors need be nervous about establishing a ‘landmark indicator’ in relation to coastal development in Australia or for being ‘principled’ or ‘leading the charge’ – both of which might sound scarily like ‘courageous’ in ‘Yes Minister’ speak.

Not only is the decision sensible, it also reflects similar decisions being taken around Australia. In an article placed online, Freehills (Law Firm of the Year 2010 at the 12th Annual Insto Distinction Awards and first on the US peer survey of Australia’s best lawyers) stated: ‘Local councils are likely to adopt a more conservative approach in approving development as they consider the risks of future negligence claims if landowners suffer loss or property damage. The article, edifyingly, examines recent developments in case law and policy in response to climate change and potential sea level rise, and discusses the implications for developers, owners and local councils in coastal areas – providing examples Australia-wide. It’s the sort of reading that would make our Councillors sleep easy in their decision.

The Freehills article goes on to discuss liability in the event of individual claims of negligence related to property damage associated with climate change and sea level rise. It not only notes the risks to council of being sued, stating, ‘It may be possible to seek contribution from the council to the extent that they are negligent in granting development consents’ but also the risks to developers, ‘...developers who fail to develop and adopt adequate adaptation strategies and measures are likely to attract some form of contributory negligence.’

Freehils also noted a NSW Court of Appeal decision that stated that ecologically sustainable development principles ‘are likely to be an element of public interest in relation to most planning decisions in coastal areas, and failure to consider ESD would provide strong evidence of the failure to consider the public interest’.

The Council would also draw comfort – in the unlikely event that such were needed – from a 2008 paper prepared for the Sea Change Taskforce (made up of local councils around the nation – currently over 68 members, of which Townsville is one). The paper, ‘Planning for climate change: Leading Practice Principles and Models for Sea Change Communities in Coastal Australia’, noted: ‘Failing to exercise due care in approving new developments that may be at enhanced risk of natural hazards such as storm events, flooding or erosion may also become a legal issue for local governments in Australia’. Three years on, this is definitely the case.

Steve Ashton
April 5th 2011
I also congratulate TCC and Crs Veitch and Roberts in particular for their principled stand. There have been major changes to the beach with Yasi and the 2010 king tides which indicates how tenuous the hinterland is. When this risk to ratepayers is combined with the other issues arising from the proposal (such as the 500m access for the public, the consequent impact on island tourism, the environmental impact of the road upgrade that would be required etc) this site is quite unsuitable for development. The real solution would be for the State to purchase the land back (or compulsorily acquire it)and return it to National Park, which is what it should always have been. In the meantime Council have done exactly what they can do, and should be congratulated. Hopefully DERM will review their position and support Council when this matter reaches the Planning and Environment Court.
Wendy Tubman
April 5th 2011
Further to my earlier letter, I would like to know the basis on which DERM accepted the developer’s decision that the ’top of bank’ would be the line, inland from which the (reduced) erosion prone area would be measured. As you note in your article, the ‘top of bank’ was not the line used by Juniper’s consultants when it recommended to the authority that it reduce the width of the erosion prone area from 95 to 60 meters.

But that is not the end of the apparent sleight of hand.

Under the Coastal Management and Protection Act, DERM is required to prepare a document showing declared erosion prone areas, and give a copy of the document to the relevant local council. The document for each council area is an annotated map (in the case of Magnetic Island, Plan No. SC3391).

The document, available on DERM’s website, sets out methods by which the position of the erosion prone area can be determined. The methods are based on various accepted terms: ‘mean high water springs; ‘highest astronomical tide’, ‘seaward toe of frontal dune (normally approximated on aerial photography by the seaward limit of terrestrial vegetation)’ etc ¬– but not one of the methods uses anything called the ‘top of bank’.

This ‘top of bank’ is nothing more than a spurious line on a map, not defined in DERM’s permit. Who will be able to say whether or not the erosion prone area, where development is prohibited, is in the agreed place?

Furthermore, DERM’s document, provided under the Act, states that the method used to determine the location of the erosion prone area must be ‘whichever provides the greater erosion prone area width...’. The made-up ‘top of bank’ method does not do this.

The document also states, ‘Erosion prone areas defined in accordance with the [methods outlined in the document] are deemed to exist throughout all the local authority area/s...’. The erosion prone area accepted by DERM is not so defined; presumably, then, it does not exist.

It is facile for DERM to say that it will not allow development in the erosion prone area when it has reduced the width of the erosion prone area (from 95 to 60 meters) and, inexplicably, shifted the area seaward – both allowing development closer to the water.
Judy chapman
April 6th 2011
As a frequent visitor to Magnetic Island I agree with the other writers in congratulating TCC and specifically Cr Veitch and Roberts for their stand to not approve Juniper's development application at Radical Bay. We have already seen so many disastrous effects of the coastal development around Australia, including at Nelly Bay and the thought of not learning from this beggars belief. I am baffled that Juniper intends to appeal the council's decision and trust council to continue standing firm in their principled decisions
John Chapman
April 6th 2011
As a regular visitor to the Island, Radical Bay is one of a few very special beaches and environments on the island. The Councillors are to be congratulated for their incisive and pricipled stand on this issue that goes way beyond whether the development should be gated or not. No doubt any (hopefully hypothetical) residents of the proposed development would want the Council and State Government to bale them out when the rising waters affect their homes. keep up the good work to protect Radical Bay from such exclusive and out-of-place development.

April 6th 2011
As a soon to be resident of Magnetic Island - I was dismayed to hear about Juniper's application to develop Radical Bay. I am now encouraged to hear of TCC decision not to approve this development. Over the years of visiting the island I have seen poor development spoil Nelly Bay and indirectly Picnic Bay. Thank goodness there are those standing up against such outrages plans to develop Radical Bay as well. Congratulations to all who endeavor to protect the beautiful and unique place that Magnetic Island is.
April 6th 2011
The readings from AIMS show that the sea level is rising by .01 of a mm per year so it would take about 5000 years to rise .5 of a meter,not 50
April 6th 2011
Rising sea levels, slow as the rate may be, are part of the picture here: storm surges, and cyclones complete it. Radical Bay, and its proposed development, may become an iconic precedent, as Councils, Government Departments, Scientists and Developers rethink how climate change is actually affecting our coastline already, and will certainly continue to do in the future. Well done to all of those people who have the courage and tenacity to think and act on our behalf beyond the now and look to the future
April 7th 2011
If your maths is so terrific, provide a specific reference for your AIMS sea level numbers. The IPCC says the number is about 1.7mm per year.
Tom Cameron
April 12th 2011
I applaud the TCC decision on haulting development at Radical Bay. As annual holiday makers (13 years now) we have come to love Radical Bay and Magnetic Island and to have it butchered by developers for a quick profit so they can fund an overseas holiday or flash car for themselves - or even worse fund further vandalism somewhere else - would be a great shame. We have to live with the destruction while you sip pina coladas. Thank you to the locals who have kept up the fight on this - keep going - we are behind you all the way.

Tom, Janet, Anna, George, Clare and Robbie Cameron.
April 16th 2011
RE BBH's comments and sea level rise, I note that past rates are no guide to likely future rates.

There is great uncertainty about future continental ice melt rates, which will be the great driver of sea level rise, beyond thermal expansion of the ocean, which I understand has driven sea level rise of past decades. Furthermore, actual sea level rise is now at the upper end of the rates predicted.

BBH's past-based projection into the future is both uninformed, and dangerously complacent. This person needs to realise that planning based on rigid insistence and reliance on past conditions will (not "might") place development and people in harm's way.

For example, Victoria's "stay and defend or leave early" bushfire policy was based on analysis of past bushfires, particularly those of 1939 and 1983. Thus, information about future climate change, including predicted increased temperatures, bush dessication and related fire intensities, was not incorporated into Victoria's bushfire response planning, which operated right up until Black Saturday. By 2009, it was 16 years out of date.

In February 2009, citizens were thus operating under applied policy that failed to anticipate or recognize unprecedented conditions, even though environmental scientists and the Victorian government's own modelling predicted these, with great accuracy.

On Black Saturday, the government's Fire Danger Index (based on many factors such as temperature, wind, dessication, litter load etc) broke all records in many places, clearly indicating unprecedented environmental conditions reflective of likewise unprecedented protracted drought and record temperatures beforehand. The tragedy was that, under the entrenched dated policy, many ordinary residents truly believed that if well prepared they could defend themselves and their homes, when this was simply not so. Many stayed and died, or perished when fleeing their failed defences. Critically, this severely outdated policy precluded Plan B (local community shelters in the event of such failure) and lots of people died as a result.

We were not far off this disaster with Cyclone Yasi. Anticipated surge innundation, as mapped by Townsville City Council's disaster response team (the equivalent of Victoria's Fire Danger Index) showed huge areas of Townsville underwater, including all of Radical Bay and large parts of Horseshoe and other bays.

Current state cyclone response policy -- shelter at home or leave -- has a remarkably similar failure point as Victoria's disastrous bushfire response planning, in that there is no Plan B for failed home shelter during a major event. Luckily, there wasn't much of this, for two major reasons: firstly, we experienced the side of the cyclone -- it was not a category 5 storm here, and secondly, Yasi's thoughtful little rest off the coast, delaying landfall until after high tide. If Cat 5 Yasi had hit either Townsville or Cairns on the rising tide, especially at night, I would expect a death toll in the hundreds. Ms Bligh certainly had this risk in mind when she went to air.

It's get real time here. Climate change is expected to drive both cyclone intensity and frequency, and sea level rise, with compounding risks over time. Given meteorological and geological processes already underway, predicted sea level rise is highly unlikely to remain at a steady low rate, as so confidently assumed by BBH.

Planning that fails to ancitipate and incorporate predicted future changes, at the higher end, and include a robust safety margin, is therefore negligent -- even reckless. If sufficiently unresponsive and/or outdated, I suggest that it is potentially culpable, by omission. Given recent official innundation mapping, and known environmental trends and predictions, I absolutely see DERM's permit to Juniper in this context.

Katie Dubon
October 26th 2011
I know I'm really late but hopefully contributers get notifications of replys. It is plain to me that most of the comments here are based on people not wanting the development to go ahead for personal reasons. It's not about public safety in the event of king tides or cyclones. So just say I'd rather not have an ugly building on the beach rather than harp on about zoning. pfft..

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