Byron Shire Council (BSC) is attempting to sell land in Ocean Shores which evidence suggests it is not legally entitled to sell because the land is classified as ‘community land’ and the land is subject to a trust and other interests.
Community land may not be sold.
The land is Lot 530 DP 238451 Orana Road, Ocean Shores (also known as the Roundhouse site).
This proposed sale affects all residents of Byron Shire.
BSC also intends to sell other land commencing with the Roundhouse site in Ocean Shores.
BSC cannot legally proceed to sell the land without first altering the classification of the land and removing the trust and other interests attached to the site. This involves an amendment to the existing LEP.
BSC has embarked on this process but can be stopped.
This is not a matter of personal interest. It is a matter of public interest affecting current and future residents of the shire.
Some of the facts and legal principles in this matter are similar to those of a successful court challenge by a courageous group of Manly residents against Manly Council in the matter of ‘Save Little Manly Foreshore’ (October 2013).
In 1990 the Roundhouse site was in private ownership. BSC zoned the land 5(a) Special Uses ‘Community’. The zoning precluded the owners from developing the land and the owners exercised their legal right to serve notice on BSC to compulsorily acquire the land.
BSC did not comply with the notice and the owners successfully took action in the Land and Environment Court. An order was issued by the court to enforce the acquisition by BSC (27/7/90).
BSC’s conduct cost the Byron Shire ratepayers $2.5 million for legal proceedings and $1.5 million for the subsequent purchase of the site i.e. BSC paid $4 million to protect its ‘Community’ zoning of the land.
In 1994 the author of a state government report on the matter was scathing about BSC’s conduct in relation to the acquisition of the Roundhouse site.
The author wrote, ‘The community would be justified in being appalled and outraged that those who have claimed to be protecting its interests have incurred such enormous costs.The community has a right to participate in the process of determining the ultimate use of the site.’
Soon after acquisition BSC re zoned the land ‘residential’ (2/7/96), despite a declaration by the Court that, ‘Having compulsorily acquired the land for a public purpose it would be anomalous if a Council then next day, or at any time, change its mind and resell it in order to make a profit.’
Despite the fact that BSC was legally bound to classify the land ‘Community’ it dealt with the land as though it was operational eg demolishing the Roundhouse building (1993) although the building was in excellent condition. (The site is a local heritage item in LEP 2014).
In 2000 BSC received legal advice concerning their administrative error ie incorrect classifications BSC later stated that the 1994 land register was void due to their administrative error.
BSC then tried to remedy the error by making further errors and failing to remove the trust provisions.
In March 2014 BSC attempted to auction land on the Roundhouse site, having first addressed a Development Application to itself and subsequently approving its own application (2003).
No community input was sought despite an investment of millions of dollars of ratepayers’ money in the land and 24 years of tireless work by concerned residents and prior councillors to preserve this community asset.
A few days before the auction BSC received a letter from a solicitor providing notice to cancel the auction.
Sufficient evidence was provided by the solicitor to cause council to comply with the notice.
BSC sought legal advice and determined that it would be quicker and cheaper to have yet a third attempt to grab the land through reclassification rather than seeking a declaration from the court as to the legal status of the land. BSC held a meeting on April 10, 2014 to discuss its proposal to reclassify the land.
This meeting was held behind closed doors.
BSC resolved, ‘That Council note that this report will not compromise the community’s knowledge of or ability to participate in the decision-making on this matter because, if it proceeds, there will need to be extensive community consultation and many opportunities to make submissions to Council and Council meetings.’ BSC has provided notice of Exhibition of its new Planning Proposal for the Roundhouse site Lot 530 DP 238451, Orana Road Ocean Shores.
Submissions are due to Council by 4 pm March 4th 2015.
BSC intends to reclassify the land from operational to community and then back to operational.
This is because BSC doesn’t know what the classification actually is and is therefore ‘having a bet’ both ways’.
BSC describes this procedure as ‘abundant caution to provide certainty’.
BSC states that its intention is to discharge the land from any trusts or interests so that it can sell the land at public auction to ‘fund future infrastructure projects in Ocean Shores and other parts of the Byron Government area.’
BSC suggests that the site will provide affordable housing but the proposed cost is prohibitive for average wage earners and the number of dwellings will have no significant impact on housing needs.
Although the Roundhouse site is a local heritage item in LEP 2014, BSC states this is not significant because the land was classified as ‘operational in 2002 and a subdivision was approved in 2003 (ie before the heritage-based study.) BSC infers that the delay in sale of the land is the fault of the community rather than the administrative errors of BSC.
In May 2013, BSC wrote, ‘The general fund has no capacity to borrow, a budget struggling to see a surplus, no allocation of funds to reserve for depreciation and a significant maintenance backlog for key assets.’ BSC has failed to inform the community of the true facts surrounding this matter.
BSC has failed to consult with the community in this matter although BSC exists to serve the best interests of the community at large and to be transparent in its dealings with the community.
Council has failed to take into account the context surrounding the proposal, ie the history, which includes the tireless efforts of members of the community and concerned councillors over 24 years to ensure that the Roundhouse site is kept for the legal purpose for which it was acquired: a community asset to be used in accordance with the provisions of a trust.
BSC is motivated to sell the land purely to raise money for short-term remedies arising from BSC’s administrative errors. Examples of overspending (eg Byron sports facility) are not the responsibility of the community.
BSC has not considered the needs of the majority of the community who can benefit from alternative uses of the land, or the needs of successive generations.
There are diverse needs and interests in the community affecting all ages.
It is the declared intention of BSC to further amend the LEP to allow the sale of other land, including ‘community’ land, to raise capital.
Roundhouse Ocean Shores; Lot 2 Bayshore Drive Byron Bay; Telstra site, Station Street Mullumbimby; Lots 7B, 2 and 1 Manfred Street Belongil; Tyagarah Aerodrome
Fletcher Street Cottage/Old Library Byron Bay
Laboratory, Centennial Circuit Byron Bay; Old South Byron Bay STP site; Old Brunswick Heads STP site; Brunswick Valley STP, Vallances Road Mullumbimby (including two houses); Bangalow STP, Dudgeons Lane Bangalow; Lot 4, Mill Street Mullumbimby; Waste Lots 3 & 29 Manse Road Myocum (including houses); Lot 15 (included the ‘Bower Cottage’) Dingo Road, Myocum; Lot 16 Dingo Lane, Myocum
In addition BSC mentions First Sun Caravan Park, Bayshore Drive Depot, the residual area of Lot 3, DP 706286, which is the vacant land immediately adjacent and westward of the Byron Regional Sports & Cultural Complex.
Land has an intrinsic worth and once lost to the community is lost forever. Pecuniary gain from the sale of public assets has a very brief ‘shelf life’. Pot holes are a bottomless pit.
Hilary Bone Federal (For further information or explanation contact the Ocean Shores Community Association (OSCA)).