Fight continues over the fate of those parts of Wallum Wetlands in private hands

Wallum Land
IMAGE: Mac Maderski at savewallum.com
 

“You are literally holding a front line between extinction and survival.... We must stand strong together. You are mighty powerful. You are the frontline. You are even bigger than this magic place, Wallum, and together we are going to win this.” [Greens State MP & Northern Rivers resident Susan Higginson addressing the March Against Zombies on 1 March 2024]

Torakina Road, Brunswick Heads NSW, Lot 13 DP 1251383 and environs

Vegetation mapping of Lot 13 DP 1251383 and environs

Echo, 19 April 2024:

The company behind the Wallum housing development in Brunswick Heads is once again taking Byron Council to court, this time for allegedly holding up its planned earthworks at the site in an unlawful manner.

As thousands of locals continue their campaign to save the heathland site from becoming home to 124 housing lots, Clarence Property has lodged an appeal against Council’s ‘deemed refusal’ of its stage 2 subdivision works certificate.

The developer needs Council to issue this certificate, which is essentially a procedural box-ticking exercise, before it can start undertaking bulk earthworks at Wallum.

But the process has been delayed by Council requesting additional information from Clarence about stormwater management, and seeking further consultation with the traditional owners.

The developer is arguing that this delay amounts to a ‘deemed refusal’ of its subdivision works certificate because of the length and nature of the delay, and has lodged an appeal against this refusal in the Land and Environment Court (LEC).

‘An application to the Land & Environment court is an increasingly common approach that Developers look to take in order to preserve their legal rights with local councils,’ Clarence Property CEO, Simon Kennedy told The Echo.

‘It’s not Clarence Property’s preferred approach; however, where a matter becomes protracted or political, it may be the best way to resolve the issue.’

Second court case

It is the second time Clarence has commenced proceedings against Council in the LEC for deemed refusal of a subdivision works certificate in the past three months.

On the first occasion, which related to a construction certificate for ecological rehabilitation works, Clarence halted its action against Council when a slim majority of councillors voted to sign off on the certificate.

The February 8 casting vote by mayor Michael Lyon was supported by councillors Mark Swivel, Asren Pugh and Alan Hunter.

They argued part of the reason for authorising the works certificate was advice provided by Council’s legal team, which suggested that Council had few prospects of successfully defending such a case.

This was largely because the development had already been approved by the Northern Regional Planning Panel.

If Council had chosen to pursue the matter and then lost, they suggested Council could have faced a substantial legal bill that included paying Clarence Property’s legal costs.

However, there is strong support from the Save Wallum campaign, the community and other councillors, to pursue legal action regardless of the likely outcome.

They argue that taking this step could encourage the developer to amend its plans, or at least buy time for other avenues to bear fruit.....

The Wallum site, located next to the Bayside housing estate, is home to multiple threatened species, including the wallum froglet and the wallum sedge frog....

On the morning of Thursday 18 April 2024 at its monthly meeting Byron Shire Council again considered the matter set out below. As of Sunday 20 April the minutes of this meeting have not been published on its website.

BYRON SHIRE COUNCIL

STAFF REPORTS - SUSTAINABLE ENVIRONMENT AND ECONOMY 13.9

Ordinary Meeting Agenda

18 April 2024 page 148

Report No. 13.9 Wallum Subdivision DA10.2021.575.1 -

Response to Council Resolution 23-454 -

Stormwater and Cultural Heritage Site

Inspection Plan

5 Directorate: Sustainable Environment and Economy

Report Author: Chris Larkin, Manager Sustainable Development

File No: I2024/260

Summary:

Council considered a Notice of Motion 9.2 Wallum DA10.2021.575.1 referral and assessment Agenda of Ordinary (Planning) Meeting - Thursday, 12 October 2023 and resolved under Parts 5, 6 and 7 of Resolution 23-454 to receive certain assessments of certain plans, and for those assessments to be reported back to Council.

This report responds to Parts 5(e) and (f) in terms of stormwater maintenance management plan for the existing drain (Condition 12), the Cultural Heritage Inspection Plan (Condition 18), Part 6 in terms of further consultation with the traditional custodians of the land and Part 7 in relation to further stormwater commentary around Condition 11.

The development has been approved in a number of stages. The matters for consideration in this report relates to three of the sixteen conditions relevant to Early Stage 2 Bulk Earthworks.

Based on the assessment below, staff recommend that Council notes the report.

RECOMMENDATION:

That Council notes the report Wallum Subdivision DA 10.2021.575.1 - Response to 25 Council Resolution 23-454 - Stormwater and Cultural Heritage Site Inspection Plan.... 

Put on the spot in state parliament last month the NSW Minister for Planning & Public Spaces Paul Scully pointed to his referral on 10 October 2023 of the question of historical development applications to the NSW Legislative Assembly Committee on Environment and Planning.

The Committee only announced its Inquiry into historical development consents in NSW and called for submissions on 19 March 2024 but makes no mention holding public hearings and is yet to publish any submissions it may have received to date.

This state parliamentary inquiry will do nothing to halt unlisted Clarence Property Corporation Limited - issuer of the PDS for Clarence Property Diversified Investment Trust (formerly Westlawn Property Trust) & Epig Lennox Property Trust - as it continues to swing its wrecking ball through what remains of natural landscapes in coastal areas of the NSW Northern Rivers region.

North East Forest Alliance & Environmental Defenders Office fight on to protect the continued existence of native forests and the biodivsersity they contain

 

Environmental Defenders Office (EDO), March 2024 Newsletter, 29 February 2024:

Hope for NSW forests: Court decision upholds community’s right to challenge native forest logging

In the shadow of claims made by the NSW Forestry Corporation, communities have been led to believe that they have no rights to challenge decisions about industrial logging in NSW native forests or seek action over unlawful conduct when logging destroys hollow-bearing trees and critical habitat for threatened species.

But two recent court decisions have shattered those claims after EDO’s client successfully ran an argument which hasn’t previously been tested in the courts. After 20 years of resistance by the Forestry Corporation, it is now legally recognised that communities with a special interest have the right to hold the state-owned logging agency to account over its forestry operations in native forests.

NSW forests are remarkable for their diverse ecosystems, unique biodiversity and cultural significance. Encompassing semi-arid woodlands to lush rainforests, these globally recognised forests are home to an extraordinary array of plant and animal life, much of which is unique to the region.

Protecting our forests is one of the most important things we can do to manage climate change, preserve our precious biodiversity and prevent further species extinctions. Yet Forestry Corporation NSW logs around 30,000 hectares of state forest every year. Sadly, many of these forests are logged to be turned into low-value products, such as woodchips, that are exported to make cardboard and toilet paper.

Weak laws failing our forests

NSW Forestry Corporation is the state-owned logging agency that undertakes industrial logging in public native forests, including in nationally important koala habitat and areas that are still recovering from the catastrophic impacts of the 2019-20 Black Summer Bushfires. It is entrusted with managing two million hectares of public forests, yet in the past three years alone, Forestry Corporation has been fined 12 times for illegal logging activities. There are 21 investigations still pending. ¹

Forestry Corporation operates under bilateral agreements with the Federal Government, called ‘regional forest agreements’, or RFAs, which allow logging to bypass normal federal environmental scrutiny. No other industry benefits from such an allowance. Under the current system of RFAs, threatened species such as the koala, greater glider and gang-gang cockatoo are being driven to extinction and the ecosystems and landscapes that we depend on are being destroyed at an astounding rate.

For some 20 years, Forestry Corporation has asserted that the community cannot seek to challenge its public native forestry operations. On 20 November 2023, the NSW Land and Environment Court rejected that position.

Court decision confirms community right

The EDO represented the North East Forest Alliance (NEFA) in mid-2023 challenging logging approvals in Myrtle and Braemar State Forests. The forests were severely damaged by the ferocious Black Summer Bushfires, which wiped out an estimated 70 per cent of the local koala population.

While NEFA was not ultimately successful, the court confirmed for the first time that the Forestry Act does not prevent persons with a special interest from taking legal action over forestry operations in NSW, including disputing logging approvals.

This is particularly important as NSW laws explicitly attempt to reduce the community’s right to challenge Forestry Corporation conduct regarding industrial native forest logging.

Forestry Corporation also argued that the court cannot judicially review harvest and haul plans because all forestry operations had already been approved by the relevant Ministers in the overarching regulation, the Coastal Integrated Forestry Operations Approval (CIFOA). However, the court again rejected that position and found that such operational plans are open to challenge.

Forest groups fight on after disappointing court decision

Building on the NEFA decision, South East Forest Rescue (SEFR) then took a step further with court action in January 2024. SEFR is seeking an injunction to stop Forestry Corporation from conducting any forestry activities in certain state forests until adequate surveys for greater, yellow-bellied and squirrel gliders have been performed. SEFR is being represented by XD Law.

SEFR argued that Forestry Corporation is breaking the law by not performing adequate surveys for den trees and necessary exclusion zones around den trees are not being implemented. It is the first time in 25 years that the Forestry Corporation has been brought to court by citizens for failure to comply with native forestry regulations, in particular failure to conduct adequate surveys for gliders.

Drawing from the findings in the NEFA decision, her Honour found that persons with a special interest can also seek to enforce the conditions of the CIFOA against Forestry Corporation.

These two decisions mark a significant departure from the status quo of the past 20 years and set important precedent for the community to hold the Forestry Corporation to account over native forest logging.

President of NEFA, Dailan Pugh said regarding NEFAs legal challenge:

“While NEFA were disappointed that our legal challenge to the logging of important Koala populations in Braemar and Myrtle State Forests was not successful, it’s promising that the case did establish that NEFA have the civil right to enforce NSW’s logging rules, opening a door to litigation we thought had been shut to us since 1998.”

“We thank the EDO for the immense effort they put into this case and creating future opportunities for NEFA, and other groups, to challenge the culture of complacency around logging fostered by lack of public accountability.”

1 Register of Crown forestry investigations (nsw.gov.au)

Does NSW Premier Chris Minns, his Environment Minister Penny Sharpe or Agricultural Minister Tara Moriarty ever wonder just whose interests the forestry brands that lobby them conceal from view?

“Put the foresters back in charge of the forests.” 

Malcolm David McComb, Pentarch Group, quoted in The Monthly, November 2020

According to the 'privately-owned' Melbourne-based PENTARCH GROUP it commenced business in 1984, combining the expertise of five individuals with diverse commercial backgrounds. In the early 1990s, the group’s primary focus was on three key businesses - representing major international manufacturers of military hardware, exporting containerised hay to Japan, and exporting softwood logs to South Korea - through its Industrial, Forestry and Agricultural divisions.

By 2019 the Group was managing over 8,000ha of land - with est. 30 per cent of the defined forest area being native forest. 

That year NSW Deputy Premier and Minister responsible for Forestry John Barilaro announced Pentarch Logistics Pty Ltd was receiving a $3 million grant to drive innovation and technology advancements in the NSW forestry industry.

In August 2021 the Group purchased the assets of Dormit Pty Ltd which operated two sawmills and associated operations located at Dandenong South and Swifts Creek in Victoria. That same year Boral divested its timber business to the Group in October 2021. Allen Taylor & Company, Duncan’s Holdings and their subsidiaries (collectively known as Boral Timber) now trade under the brand Pentarch Forestry. This acquisition saw Pentarch add eight sawmills, including part ownership of the Highland Pine mill at Oberon, to allegedly become the largest hardwood processor in NSW.

Pentarch Forestry exports in excess of 800,000tn per annum of plantation softwood and hardwood from Australian and New Zealand ports. This division is actively involved in forestry harvesting and haulage; port logistics including marshalling, storage and stevedoring; and international marketing and shipping.

These days its forestry division boasts that its key woodchip and logs export destinations are; China, India, Japan, Korea and the Middle East. While its sawn timbers are listed as being sourced from; Malaysia, New Zealand and Australia. 

By 2022 the Pentarch Group operated 20 sites nationally with a high concentration of timber mills in NSW.

The Pentarch Group clearly states:

Timber sustainably sourced from our native forests is our most valuable and precious resource and Pentarch Forestry™ takes pride in finding ways to better use every part of that resource.

In particular Pentarch Forestry harvests Tasmanian hardwood logs from the north-west of that state and timber from native forests (including privately-owned native forest) on land around Nungatta, Mila & Delegate in NSW, as well as from Combienbar, Murrangower & Bendoc in Victoria and, apparently sees itself as helping to protect and manage a large permanent native forest estate.

[Mapping at https://pentarchforestry.com.au/sustainability-environment/sustainable-forest-management/]

The Group's milled native timber is ending up as everything from solid timber floor boards through to mass produced wooden pallets for industry and woodchips as a secondary product.

Its offices can be found at 18 different locations across five states. [See list & details at end of this post]

In its April 2022 submission to the NSW Legislative Council's INQUIRY INTO LONG TERM SUSTAINABILITY AND FUTURE OF THE TIMBER AND FOREST PRODUCTS INDUSTRY, Pentarch advocated for the permanent retention of multiuse State Forest. Also expressing a sense of frustration that the forestry industry had not been allowed carte blanche to clear the 2019-20 native forest fire grounds of all suitable timber. Apparently a firm believer in a forest restoration harvesting process. Leaving this reader with the suspicion that the Pentarch Group belongs to the 'lets keep the forest floor tidy' brigade.

2022 was also the year that Pentarch Forestry Pty Ltd had  its Forest Stewardship Council (FSC) sustainability certification (first obtained in 2017) suspended when a renewal audit found that Pentarch’s due diligence system was out of date, regrowth native forest and plantation wood were at risk of being mixed together, and threatened species assessments were not being done.

Prime Minister Scott Morrison & Chairman Pentarch Group Malcolm McComb. IMAGE: Merimbula News Weekly, 23 June 2020

Despite the apparent ease of access to political decision makers large forestry corporations appear to enjoy at federal & state government level, this apparently doesn't satisfy all in the industry that their voices are the loudest. 

The Pentarch Group chairman also reportedly co-founded Forest and Wood Communities Australia which has a dedicated website, a Facebook page and an X/Twitter account with the less than subtle principal aim of pushing back against so-called "environmental extremists", "ideological idiocy", criticising the Victorian Government and pressuring the NSW Minns Labor Government. The social media accounts in particular have a tendency to mislead.

The faces fronting the Pentarch Group are on display at:

http://www.pentarch.com.au/pentarch_team.html.

However, the principal corporations in this group are very careful to conceal shareholder identities - all shares in the following three registered companies are beneficially held by the companies on behalf of unnamed individuals/corporations.

Although it is not hard to imagine that the Sedger, McComb, Yuncken, Cuthbertson and Dadd families might properly feature heavily on the shareholder list - along with a discreet number of self-managed super funds, investment entities and trusts. It is also not hard to imagine that the 'hidden' nature of such shareholder lists might potentially contain conflicts of interest for state and local governments dealing with the forestry industry.

It is noted that the Minister for Climate Change, Minister for Energy, Minister for Environment and Minister for Heritage, Minister for Agriculture, Minister for Regional NSW and Minister for Western NSW and the NSW Treasurer were meeting in 2023 with members of the forestry industry concerning what was loosely described as "forestry industry reform" and "forestry matters".

~~~~~~~~~~

PENTARCH GROUP PTY LTD

ACN: 064 165 635

ABN: 21064165635

Registered in: Victoria

Registration date: 31/03/1994

Registered address & principal place of business:

'Kings Garden Estate' Level 1, 99 Coventry Street,

SOUTHBANK VIC 3006

Directors:

MALCOLM DAVID MCCOMB (Victoria)

IAN KENNETH SEDGER (Victoria)

SIMON JOHN YUNCKEN (Victoria)

FRASER JEFFREY CUTHBERTSON (Victoria)

STEPHEN GORDON DADD (NSW)

Company Secretary:

SIMON JOHN YUNCKEN

Shares issued:

Ordinary Shares - 1,438 Fully Paid

• 838 Beneficially held by: TIMBER AUDITS & TECHNOLOGY PTY LTD

• 600 Beneficially held by: PENTARCH GROUP PTY LTD

Current roles in the following organisations:

PENTARCH PERMACULTURE & CARBON PTY LTD

ACN: 661 995 035

ABN: 98661995035

Address: Unknown

OCEAN2EARTH PTY LTD

ACN: 663 110 629

ABN: 71663110629

Address: Unknown

Current shares and interests in:

*675,000 CLASS I SHARES & 1,125,000 CLASS

N_SHARES Fully Paid

Beneficially held by: SOUTH EAST FIBRE EXPORTS PTY LTD

ACN: 000 604 795

ABN: 85000604795

Address: Unit 1, 250 Charman Road, CHELTENHAM VIC 3192

*600 Ordinary Shares Fully Paid

Beneficially held by: PENTARCH HOLDINGS PTY. LTD

ACN: 064 165 635

ABN: 21064165635

Address: Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

*96,000 Ordinary Shares Fully Paid

Beneficially held by: ALLIED NATURAL WOOD ENTERPRISES PTY LTD

ACN: 607 144 089

ABN: 65607144089

Address: Jews Head Edrom Road, EDEN NSW 2551

*96,000 Ordinary Shares Fully Paid

Beneficially held by: SAPPHIRE FORESTS PTY LTD

ACN: 607 256 780

ABN: 85607256780

Address: Jews Head Edrom Road, EDEN NSW 2551

*10,000 Ordinary Shares Fully Paid

Beneficially held by: ALLIED NATURAL WOOD EXPORTS (TAS) PTY LTD

ACN: 619 876 345

ABN: 23619876345

Address: Jews Head, EDROM NSW 2551

*1,000 Ordinary Shares Fully Paid

Beneficially held by: FORESTS IN PERPETUITY PTY LTD

ACN: 639 068 732

ABN: 84639068732

Address: Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

*73,740 Ordinary Shares Fully Paid

Beneficially held by: TIMBER AUDITS & TECHNOLOGY PTY LTD

ACN: 094 390 271

ABN: 88094390271

Address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

*10,000 Ordinary Shares Fully Paid

Beneficially held by: PENTARCH PERMACULTURE & CARBON PTY LTD

ACN: 661 995 035

ABN: 98661995035

Address: Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

~~~~~~~~~~

PENTARCH HOLDINGS PTY. LTD

ACN: 064 165 635

ABN: 21064165635

Registered in: Victoria

Registration date: 31/03/1994

Registered address & principal place of business:

'Kings Garden Estate' Level 1, 99 Coventry Street,

SOUTHBANK VIC 3006

Directors:

MALCOLM DAVID MCCOMB (Victoria)

IAN KENNETH SEDGER (Victoria)

SIMON JOHN YUNCKEN (Victoria)

FRASER JEFFREY CUTHBERTSON (Victoria)

STEPHEN GORDON DADD (NSW)

Company Secretary:

SIMON JOHN YUNCKEN

Shares issued:

Ordinary Shares - 1,438 Fully Paid

• 838 Beneficially Held by: TIMBER AUDITS & TECHNOLOGY PTY LTD

• 600 Beneficially Held by: PENTARCH GROUP PTY LTD

Ultimate holding company for:

PENTARCH FOREST PRODUCTS PTY LTD

ACN: 059 465 879

ABN: 57059465879

Address: Level 2, 121-123 High Street, PRAHRAN VIC 3181

ARI LEASING PTY. LTD

ACN: 072 963 798

ABN: 77072963798

Address: Unknown

PENTARCH LOGISTICS PTY LTD

ACN: 075 432 254

ABN: 99075432254

Address: Level 2, 121-123 High Street, PRAHRAN VIC 3181

PENTARCH AGRICULTURAL PTY LTD

ACN: 101 274 613

ABN: 45101274613

Address: "KINGS GARDEN ESTATE", Level 1, 99 Coventry

Street, SOUTH MELBOURNE VIC 3205

SAPPHIRE HAULAGE PTY LTD

ACN: 132 292 436

ABN: 55132292436

Address: Unknown

NARROGIN HAY PTY LTD

ACN: 104 157 593

ABN: 73104157593

Address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

PENTARCH STEVEDORING PTY LTD

ACN: 108 439 185

ABN: 53108439185

Address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

MALLEE HAY PTY LTD

ACN: 123 956 089

ABN: 78123956089

Address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

PENTARCH FARMS PTY LTD

ACN: 123 956 105

ABN: 97123956105

Address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

~~~~~~~~~~

TIMBER AUDITS & TECHNOLOGY PTY LTD

ACN: 094 390 271

ABN: 88094390271

Registered in: Victoria

Registration date: 06/09/2000

Registered address & principal place of business:

Registered address: 'Kings Garden Estate' Level 1, 99 Coventry Street, SOUTHBANK VIC 3006

Directors:

MALCOLM DAVID MCCOMB (Victoria)

IAN KENNETH SEDGER (Victoria)

SIMON JOHN YUNCKEN (Victoria)

Company Secretary:

SIMON JOHN YUNCKEN

Shares issued:

Ordinary Shares - 73,740 Fully Paid

Beneficially held by: PENTARCH GROUP PTY LTD

~~~~~~~~~~

Pentarch Group offices current as of 17.02.24:

TASMANIA

Massy Greene Drive

South Burnie, Tas, 7320

PO Box 3033

Ph: 03 6430 7333

VICTORIA

Level 1, 99 Coventry Street

Southbank, Vic, 3006

Ph: 03 9621 7900

Great Alpine Road,

Swifts Creek, Vic, 3896

Ph: 03 5159 4438

98 Indian Drive

Keysborough, Vic, 3173

Ph: 1800 818 317

96-106 Ordish Road,

Dandenong, Vic, 3175

Ph: 03 9706 5744

QUEENSLAND

838 Nudgee Road

Northgate, Qld, 4013

Ph: 1800 818 317

Suite 12 Level 1,

84 Wises Road

Maroochydore, Qld, 4558

PO Box 5561

Ph: 1800 818 317

SOUTH AUSTRALIA

176-178 Magill Road

Norwood, SA, 5067

Ph: 1800 818 317

NEW SOUTH WALES

Eden Log Export Facility

Lot 2, Edrom Road

Eden, NSW, 2551

Ph: 02 6496 0252

Eden, NSW

Eden Chip Export Terminal

Edrom Road, Jews Head

Eden, NSW, 2551

Ph: 02 6496 0222

420 Herons Creek Road

Herons Creek, NSW, 2443

Ph: 02 6585 7188

43 Mill Road

Koolkhan, NSW, 2460

PO Box 437

Ph: 02 6644 7280

13056 Summerland Way

Kyogle, NSW, 2474

PO Box 187

Ph: 02 6632 1866

148 Tweed Valley Way

Murwillumbah, NSW, 2484

PO Box 56

Ph: 02 6670 8700

6016/6018 Princess Highway

Narooma, NSW, 2546

PO Box 75

Ph: 02 4476 7908

Unit D1, Regents Park Estate

391 Park Road

Regents Park, NSW, 2143

Ph: 1800 818 317

50 BTU Road

South Nowra, NSW, 2541

PO Box 5014

Ph: 02 4447 8262

PRINCIPAL SOURCES:

• ASIC company extracts retrieved 16.02.24
• The Pentarch Group website at http://www.pentarch.com.au/

• Industry news media
• Submission 233, NSW Legislative Council Inquiry into Long term sustainability and future of the timber and forests products industry. 
• Pentarch Forestry, Forestry Management Plan, September 2019.
• NSW Government, 2023 Ministers' Diary Disclosures at https://www.nsw.gov.au/departments-and-agencies/the-cabinet-office/access-to-information/ministers-diary-disclosures/2023
• The New Bush Telegraph, NSW Biggest Native Forest Logger Loses Sustainability Certification, 10 September 2022.
• Michael West Independent Media, Big logging company Pentarch pinged for shifty forestry practices, 7 September 2022.
• Forest and Wood Communities Australia at https://fwca.org.au/news/  https://twitter.com/woodcommunities & https://www.facebook.com/WoodCommunities/