WHY IS THERE NO BODY CORPORATE AT “PORT HINCHINBROOK”?
When a development is sold, the developer may retain control over the whole development to ensure that prices, sales and resales are not subdued due to subdivision blocks (whether sold or not) looking neglected.
The “Port Hinchinbrook” estate was much undersold, leaving the developer still in control (with 76% of the vote) of what amounts to a body corporate look-alike, called Port Hinchinbrook Services Pty Ltd, which remains under the control of the developer.
“PORT HINCHINBROOK” - ALL OF IT - IS A PRIVATE SUBDIVISION
Approvals for private subdivisions such as “Port Hinchinbrook” allow a developer to avoid paying the local Council for appropriate contributions to essential infrastructure such as internal roads, sewage disposal system, water supply, dredging of canals etc.; and can result in infrastructure construction of lower standard than local Council might require. The reduced cost to the developer may be reflected in lower subdivision sale prices, which may seem to advantage both developer and buyer.
Purchasers of blocks sign contracts setting out their financial obligations – always a case of caveat emptor. Maintenance charges are generally divided equitably among the subdivision block owners, who manage their common subdivision expenses through a body corporate.
In the case of “Port Hinchinbrook”, these expenses always included ALL of the dredging, whether for the marina or the access canal. The gift of an “all-tides” boat ramp, the sweetener to convince Cardwellians to support a housing subdivision on an old mangrove island, was an intrinsic part of the original deal set out in the 1994 Deed of Agreement. What most Cardwellians probably still don't know is that Keith Williams quietly retracted that promise, by adding extra words - “to the best of company's efforts” - in the Conformed Deed of 1996.
Since then, despite the Deed and many public statements stating the Shire would never pay for dredging, the developer (whether Keith Williams or his son Ben) has shamelessly pressured the local Council to take over at least part of it. The “gift” to Cardwell now seems to have come with a price tag.
The players: the development company (now called Williams Corporation); Port Hinchinbrook Services (the developer-controlled body corporate look-alike); the independent Building and Maintenance (BAML) Payers Association; and the Cardwell Shire Council.
By 2004, in a letter dated 13 Sep, Keith Williams was already pressuring the Cardwell Shire Council to take over maintenance and dredging. In 2005, Ben Williams continued in similar vein:
“ … your Council should … allocate an annual contribution towards the dredging of the Grande Canal and the access channel …” (p10)
“ …such payment can be justified to your ratepayers by stating that such payment is a contribution towards keeping open the access channel for your Council’s public boat ramp because we are not asking for a contribution to be used in dredging the marina basin although one third of the basin is public water” (p12)
“ …this letter …on behalf of Port Hinchinbrook Services Limited which we manage for a fee.” (p12)
(Newsletter and letter to Cardwell Shire Council 15 April 2005)
Some block owners formed a Building and Maintenance Levy (BAML) Payers Association. In a letter (30 Jan 2006) to the developer-selected Port Hinchinbrook Services Consultative Committee, this Association formally complained about excessively high sewerage and other charges, and the lack of independence of the Port Hinchinbrook Services Consultative Committee.
In May 2006, Keith Williams wrote to “Port Hinchinbrook” block owners: “The development of stage II is the answer” - that is, subdividing more land would bring in another 300 or so block owners to share the maintenance costs; and he added:
“Stage II when approved, will also lighten the pressure on existing members because the lock system and pumping water into the static lake will virtually eliminate silt in the subject lake but we envisage that Stage II property owners will be paying BAML on the same basis as our existing Stage I” (p5).
(Newsletter from PHS Ltd to PHS members 22 May 2006)
All “Stage II” Development Applications (DA) since 2004 have been refused. The most recent refused DA would have been a completely separate development and therefore would not have had any direct effect on the “Port Hinchinbrook” maintenance fees. Also in this DA there was an intent to transfer the dredge spoil block (Lot 170) to Port Hinchinbrook Services, the quasi-body corporate, thus relieving the development company of any further responsibility for the accumulation of intractable dredge spoil material.
The existing “Port Hinchinbrook” occupies land north and south of the Grande Canal, the result of several stages of approvals, one of these being by Environmental Impact Statement (EIS) waiver in 1997. A Senior Planner's internal memo dated 24 September 1997 from the Queensland Environment Department reads (in part):
"There should be a plan of development which ties the development proposal into the desired levels. Any change at all from this should require an EIS ... The decision of the letter [ie to waive an EIS] is contrary to the advice supplied ... "
As the years passed, reference to the entire existing development as “Stage I” naturally led many people to believe that a “Stage II” would automatically follow, even though the developer did not at the time own any of the agricultural lands south of Lot 170 (these were acquired later).
This development has already cost the shire dearly. One example: in 2003 the Cardwell Shire Council decided (T3045) to charge the developer a Development Application fee of $25,000 (mainly for external consultant fees) instead of at least $300,000 as advised by Council staff.
More recently, the state has paid for dredging the access canal. Neither developer nor subdivision residents will repay this cost on the public purse. And, as everyone knows but few will admit, the historical occurrence of severe siltation of Oyster Point is not going to change; so how long will this taxpayer-supported corporate welfare be continued?
Meanwhile, the cost to the natural environment continues without redress: rock walls and erosion replacing old mangrove forest, woodland forest death in Girramay National Park, clearing of mahogany glider habitat on agricultural land, loss of safe dugong habitat (Stoney Creek), sulphuric acid discharges – etc.
Many of the “Port Hinchinbrook” residents feel let down or cheated, despite purchasers' financial responsibilities being set out in the sale contracts. It seems that many relied on what they were told rather than on the written contracts.
Some say that the state government has a moral responsibility to chip in because it approved the development, promoted “Port Hinchinbrook” as a Development of State Significance, or because the public boat ramp is at the far end of the Grande Canal (ignoring the provisions of the Deed of Agreement that dredging would remain the responsibility of “Port Hinchinbrook”), or because dredging is more costly than expected.
- Oyster Point is the northern bank at the mouth of Stoney Creek, which was bunded, excavated and straightened to form the "Port Hinchinbrook” canal estate's so-called Grande Canal.
- Cyclone Yasi did not cause a siltation “problem” at Oyster Point. Severe siltation at Oyster Point is only a problem because its existence , though known, was ignored by state politicians and developer alike.
- A 1977 Queensland Harbours and Marine Department Report stated that severe siltation was one of the reasons for the Report's conclusion that Oyster Point was unsuitable for a boat harbour. Other reasons cited were lack of naturally deep water, and its catchment location.
- Cyclone Yasi did not design or build the marina pontoons (crudely made of polystyrene foam wrapped in black plastic sheeting, topped with unsecured concrete platforms) and the too-short piles, which did prove to be a problem during the cyclone. When the storm surge lifted the concrete-topped pontoons off the piles, the pontoons (being top heavy) overturned, sending hundreds of tonnes of cement sheets to the muddy bottom. Presumably well buried by now.
- Pat Flanagan (see newsclip 24 may 2012) is the development company's consultant.