Hans Lovejoy
From more than $1 million in 2009/10 to $115,500.50 in 2013/14 – how and why did Byron Shire Council’s legal expenses decrease so dramatically?
Either there’s been a great performance from council’s legal team, the pressure on council to defend its planning policies has decreased or council is now not rejecting developments as much.
Regardless, legal expenses have been trending downwards, with costs in 2010/2011 totalled $734,912, in 2011/2012 $385,033 was reported and in 2012/2013, $216,269 was spent.
And in 2014/2015, the total provided to The Echo by council staff is $111,969.17
Council’s annual legal reports reveal that various subdivisions and DA refusals all contributed to the high legal costs during 2009 and 2010 under the previous council. A standout cost in 2009/10 was $369,068.31 in defending against Woolworths building in Mullumbimby.
Another long-running cost to council over the years were the ongoing court battles with Belongil resident John Vaughan, who had disputes over ‘protection works’ at his Manfred Street home.
Those costs, along with other challenges from Belongil residents, evaporated after the right-wing council majority recently erected a 105-metre rock wall with nearly a $1m of ratepayer funds next to his home.
The higher legal expenses were incurred while Greens Jan Barham was mayor; from 2004 to 2012, she served two terms as the popularly elected mayor of Byron Shire.
History of court wins
She told The Echo, ‘One of the main and overlooked issues is how and why council ends up in court – the reasons are important.’
‘Council has a history of defending and winning in court.
‘This has always been important for Byron Shire, as it represents an investment in the priority given to planning rules and environment protection policies.
‘Most often, decisions of council that are consistent with plans and policies are challenged when applications are refused. Then there is the decision as to whether or not council defends.
‘This is always a tricky decision as there can be interest beyond the individual applicant to break and successfully breach Byron’s planning rules. The prize is to set a precedent – that changes everything!
‘And we must remember that many of Byron’s planning rules have taken a long time to set in place.
‘When making planning rules, there has always been a requirement to undertake extensive studies, reviews and community consultation, including public exhibition.
‘This all takes a lot of time and investment, but has been a strong point of this community historically that has resulted in the definition of this area as “different” in its protection, preservation and built environment.
She says that Byron Shire is different but many people don’t know why.
‘There is little awareness that much of the feel and character of the place is owing to many years of community involvement on committees and commitment to undertake detailed work that is required to deliver legally contestable planning instruments.
‘That is why they must be defended, because it is an investment in the future and so when legally challenged it has always been worthwhile to expend the costs involved in meeting the challenge.
‘Byron Council has had a history of legal challenges where the development sector has combined their efforts to beat the council’s planning laws.
‘In the 1990s there were numerous cases about the sewerage moratorium; it was important for council to defend the cases as it had determined that the sewage treatment plants (STPs) were overloaded and polluting the waterways.
‘But still there were actions against council and it was said that a number of developers were funding each case as it was in their interests to get a win, but the courts ultimately upheld council’s decision to refuse applications on the basis of the lack of infrastructure.
‘A few approvals were given on the basis of onsite systems. We have seen the same principle with the coastal issues; council’s planned retreat policy that has been in place since 1988 has been challenged many times and successfully defended for a long time.
‘But it has always been clear that there were combined interests in challenging.’
Worked hard
Council’s legal services co-ordinator Ralph James said council has worked hard over the past decade to ensure its policies and planning regulations are upheld.
He said, ‘[We strike] a careful balance [between] defending challenges and sitting down with the proponent to see what can be resolved.’
On the issue of recovering costs, Mr James said it was not always possible.
‘The majority of our court cases are Class 1 in the Land and Environment Court whereby the proponent is appealing against a council development decision. In this scenario, both sides pay their respective court costs.
‘Costs in the Local Court are recovered by the State Debt Recovery Office and often payment plans are entered into and therefore [other parties] can take many years to repay the council court costs.’
Mr James said costs normally follow the event. ‘Generally when a judge convicts a person of an offence, that person will usually be ordered to pay the costs of the prosecutor. Where a judge dismisses a charge, the defendant will usually be entitled to their costs.’
The Echo did not get a reply from mayor Simon Richardson regarding this story; however, he verified the legal costings via staff.
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