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Byron Shire
March 5, 2021

No-one expects the Byron compliance squad

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David Lovejoy

Last week’s editorial in the print edition of The Echo expressed some anger that Byron Shire Council should seek to subpoena the editor’s communications with a resident it was taking to court.

The general manager has responded with a letter stressing that the council only wanted to establish that the defendant’s statements in the paper ‘were actually his’. In addition a press release made the same point at greater length. ‘Council was not seeking any information beyond confirmation that what Mr Major told The Echo was in fact an accurate reporting of his views,’ it said.

What the subpoena actually demanded, with the sanction of arrest if not complied with, was the following:

‘All notes, documents and records in relation to communication to/from the Byron Shire Echo and Shai Major in respect of “Schoolies landlord hits back at Council, media” BSE December 13, 2011 including, but not limited to, any written document (original or copy) and information held by way of: computer medium; magnetic tape; hard copy; photograph; video tape; or by any other manner used in retaining information.’

That the parties subsequently came to an understanding that if Mr Major confirmed that he made the statements attributed to him in the article the subpoena would be withdrawn does not alter the high-handed nature of Council’s approach to this case.

Crusade

So a storm in a teacup – albeit an expensive cup that has cost both sides legal fees. But it illustrates the increasing tendency of our local government to behave as if it is on a crusade to punish wrongdoers. There is an unpleasant triumphalism in Byron Shire Council’s announcements when compliance issues are involved.

Why, for example, was it thought necessary to issue a press release with this second sentence: ‘Wallace Alan Charles Hunter, Nationals candidate for the Federal seat of Richmond during the 2010 Federal election, faced Byron Bay Local Court last Friday (February 12) as a result of action by Byron Shire Council compliance officers’. What does Mr Hunter’s political affiliation have to do with anything?

Then again, the Shai Major case is also notable for the appalling leak of photographic ‘evidence’ of overcrowded letting to the Northern Star. That newspaper did not bother to get Mr Major’s side of the story, but there is only one place those photos could have come from. How important is a conviction that it demands legal pressure on one media outlet and leaks to another?

One wonders whether this boots an’ all approach is what the state government had in mind when it framed the model litigation policy for civil litigation. The policy requires the state and its agencies (including local governments) to act as a model litigant in the conduct of court action.

Section 3.1 reads: ‘The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the state and its agencies act with complete propriety, fairly and in accordance with the highest professional standards.’

Serious charges

By contrast the council is using the full criminal provisions of the LG Act and the EP Act in its actions against residents. Many of them have no idea that they are facing such serious charges; some of them cannot even afford legal representation.

One reason the compliance department seems to have untrammelled say in these cases is the absence of a disputes resolution committee. Another attempt to set one up at Thursday’s Council meeting was defeated by head-in-the-sand councillors.

Of course we agree that people should not, in the general manager’s words, ‘take advantage of visitors or jeopardise the amenity of local residents for a quick buck’.

Greedy practice

However, prosecuting a share house is one thing; coming to grips with holiday letting in residential zones is quite another. Such letting is a greedy practice that impinges on the lives of residents and artificially inflates the cost of housing. But its proponents believe it is legal according to the NSW Planning Department and Council has hitherto been unable to prevent it.

There are estimated to be 600 such cases of landlords spoiling the amenity of local residents for a quick buck that await the general manager’s attention. In the meantime, if you have a compliance issue on a rural property, be prepared for trouble. If you are really unfortunate, like Fast Buck$, you might find the police turning up with the Council crew. Or a subpoena in your letterbox.


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