21 November 2022
ATTENTION: Local Laws Review
Response to Moreton Bay Regional Council Proposed Local Law – Revetment Walls
Over the past few weeks, since having the proposed Local Law on revetment walls being brought to the attention of Newport Action Group (NAG), we have canvassed our members and make this submission on their behalf.
For ease of understanding, the following subheadings reflect the various areas of concern:
- Retrospection
- Application
- Consultation
1. RETROSPECTION
Applying a law such as this is in effect, applying a retrospective law for which current owners should not be responsible. The proposed Local Law is retrospective in its nature, and does not take into account historical matters which have a huge impact on every waterfront property owner.
A Factsheet created by Moreton Bay Regional Council (MBRC) on Canal Revetment Walls advises that canal walls located in front of private property are the responsibility of the property owner, including maintenance and ultimate replacement. We are however, unable to find any documentation to support this claim:
The original Newport Waterways subdivision plans submitted by Redcliffe Seaside Estates and approved by Redcliffe City Council (which has since been amalgamated into MBRC) included approval of the revetment walls. There is no record available to NAG that outlines the responsibility for the ownership, maintenance and replacement of revetment walls, or for that to be passed on to future owners.
It should be noted that in the contract of sale of land for each block in the subdivision, no reference was made to the responsibility of the landowner for the revetment walls. No contracts for later resale of the land included the responsibility for the cost of revetment walls.
MBRC’s Factsheet claim appears to be erroneous and based on assumption rather than fact. An attempt to make this Factsheet into law is presumptuous and not acceptable.
Notwithstanding this, we offer the following:
The original revetment walls in Newport are almost 50 years old, and canal revetment walls have a design life of 50 years according to MBRC documents. Canals in original development area (Kingfisher, Sandpiper, Pelican, Petrel, Cormorant Canals) were constructed in 1978, and hence are approaching their design life. The mid-development stages around Falcon, Jabiru, Swan, Kite, Hawk Canals) were constructed in and around 1997, and hence are at half design life.
The impact of this Local Law on each resident is substantial. In summary, using MBRC provided figures:The valuation on the revetment walls show a total length of walls of 15,000m, and a total replacement value of $195,418,297.
This means that replacing canal walls is expected to cost $13,027.88/metre. It is unclear whether this construction cost only, or construction and demolition and removal of the existing wall.
Many canal residences in these canals have a minimum canal frontage of 20 metres, meaning that those residents would be subject to renewal costs of approximately $260,557 for their revetment walls. This is a cost that may be able to be borne by some, but not others.
Some revetment walls are contiguous across adjoining blocks, and are not separate for each block. The factsheet clearly shows a lack of understanding of the original plans and the original design and method of construction of the revetment walls. This proposed law does not take this anomaly into account.
Note that visual representation of some of the following points can be accessed in Attachment A.Over the years, management by not only canal block owners, but also Council and other users of the canals have caused impacts to the revetment walls. For example, Council actions over many years have caused stress to revetment walls by:
Allowing the beach or rock wall level to erode or reduce below design profile.
For example, rock wall profiles in Stage 20 show the rock wall beach to be built to the top of the revetment wall. Current levels of rock wall beaches (eg along Albatross Canal) show that the rock wall is seeming to not continue to remain at those levels consistently
)Likewise, the relatively recent (approx. 2015) reprofiling of the original sand beaches in Kingfisher, Sandpiper, Pelican, Petrel, Cormorant Canals and replacement with gravel has caused the beach levels to be reduced at the revetment walls be approximately 600mm – as can be seen by the marks on the revetment walls. This is likely to have placed additional stress on the integrity of those walls.Maintenance of the canals over the years have also had an impact, particularly along Albatross Canal, where the tidal and stormwater flows can reach approximately 6 knots. Scouring has been caused, which affects the integrity of the revetment walls.
Note that the land cross-section in the Australia Court, Courageous Court and Southern Cross Drive Council-approved developments had a profile where approximately 67% of the land sloped towards the canal, and 33% towards the road, creating excessive rainfall runoff into the canals. This was reversed in later development stages, reducing rainfall runoff. Impacts that were not of the landowners’ making have already occurred.Another issue that affects the integrity of revetment walls is fortunately uncommon in Newport. This is the incidence of “slip circle” failures of the marine mud substrate of the canal locality. Although uncommon, it has occurred at least twice along Albatross Canal at the western edge of the Newport Marina carpark in approximately 1999, and again along the north-eastern edge of the embankment near the Kay Cottee Bridge on Griffith Road in approximately 2002. (Photographic evidence is available if required)
Evidence shows that public water traffic usage of the canal system over the years has caused wash and scouring which affects canal revetment wall stability and maintenance. This is particularly noticed along Albatross Canal which concentrates all water traffic entering and exiting the canal system. Albatross Canal is also where larger commercial vessels operate, with larger turning circles, larger propellers and more potential for scouring (photographic evidence is available if required)
The making of this local law does not acknowledge the interaction between the revetment walls and the activities that occur on the outside of the wall that may affect the integrity and/or stability and strength of the wall. These processes may include:
-Slumping of the beach profile
-Slumping of rock wall armour
-Reprofiling of beaches (as in Kingfisher and Sandpiper Canals circa 2015, resulting in approximately 600mm of beach removed against the outside of the wall
-Dredging and canal maintenance affects
Revetment walls form the waterside boundary of each block. They have two sides – one side being the canal block retained by the wall, and the other side being the canal rock and sand/gravel beaches, which supports the wall and for which Council is responsible, and which is used for public access.
It would be egregious to assume that only one party is the beneficiary of, and responsible for the maintenance and replacement of the revetment wall.
Although canal block owners pay a levy to MBRC to help with the canal and beach maintenance, they have no control over activities outside of their own block which may impact the revetment wall.
Some residents have purchased canal properties that, given their age and the various activities which have impacted the revetment walls, may very likely have inherited revetment walls which are damaged or compromised. This retrospective law would be grossly unfair.
Conclusion
It is unreasonable, given the historical evidence available, to expect owners, some of whom will see the lifespan of their revetment wall ending shortly, to be solely responsible for something which they did not have total control over.
2. APPLICATION
The proposed Local Law requires current owners to advise prospective buyers of any maintenance issues regarding the revetment wall bounding that property.
This has the likely effect of opening a “Pandora’s Box”.
The questions one must ask are:
What happens when a current owner in good faith, sells their property only for the new owner to experience a revetment wall issue after the sale? What recourse is available to the new owner?
There is a possibility that one revetment wall can cause damage to another adjoining wall. Will fixing one revetment wall detrimentally affect the revetment walls of neighbours on both sides? Where does the responsibility start and finish?
With the current proposal, the answers to these questions are open-ended.
We see the only solution to these dilemmas is Council eventually requiring a prospective seller to obtain certification from a suitably qualified engineer
Currently, with the sale of any property, caveat emptor is applied, whereby the prospective purchased has a responsibility to ensure that structures meet with their standards. This often means that prospective purchasers employ qualifies builders for that purpose.
This new proposal places a responsibility on the seller, which contravenes current contract of sale understanding. This proposal is not in keeping with standard practice.
Conclusion
It is unreasonable, unjustifiable and unfair to place such a burden on current owners by imposing this proposed law when it is not reflective of current sales practice. There are too many mitigating issues in the maintenance of canals, their beaches and revetment walls that make this law unacceptable.
Further, there is a question whether this local law can be applied to revetment walls. Arguably, this local law establishes an “alternative development process” which is covered by Section 37 of the Local Government Act 2009. It states:
“37 Development processes
(1) A local government must not make a local law that establishes an alternative development process.
(2) An alternative development process is a process that is similar to or duplicates all or part of the development assessment process under the Planning Act.
Further legal consideration must be given to the impact by such a law on this Act.
3. CONSULTATION
MBRC notes that extensive local consultation had taken place prior to the drafting of this proposed Local Law. We acknowledge MBRC’s good intentions, however NAG has been unable to identify any waterside property owners in Newport who were consulted prior to this proposed local law being drafted.
We note that in its explanatory notes, MBRC states: “Council sought the community’s feedback on Local Law issues from 1 March to 5 September 2021. During this time, Council undertook targeted consultation regarding the maintenance of seawalls. This consultation took the form of a public survey, and Council invited submissions from relevant peak body organisations and state departments …”
Given the impact that such a law is going to have on the over 600 canal front property owners, plus the Newport lakeside property owners, and in the knowledge that this represents a defined group that could be easily canvassed, we are extremely disappointed that adequate representation of the affected owners was not sought.
Given the consistent responses from our members, it is clear that a public survey combined with input from “relevant organisations” was not adequate. The resultant outcome does not adequately represent the relatively small number of MBRC constituents who will be specifically affected by this law.
Our previous experience with Council belies this most unfortunate consultation process.
Given the many concerns raised, we sincerely request that MBRC withholds this proposed local law on revetment walls until more representative consultation has taken place.
We ask Council to understand that not every resident of Newport is a member of an ‘organisation’, not everybody accesses Facebook and other social media platforms, yet every Newport resident who will be affected by this proposed law should be consulted and in so doing, be treated both fairly and decently.
CONCLUSION
We would be more than happy to assist MBRC in facilitating a consultative process and look forward to a successful outcome that is a true reflection of the community affected by this proposed local law.
Yours sincerely,
Kenlie Williams
President