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Byron Shire
December 1, 2022

Approval of Elements’ DA modification legally incorrect

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1 April 2016

Happy April Fool’s Day which prompts me to say who is fooling who in this situation. Certainly it is important Byron Shire Council’s staff and councillors are aware of sections of the Environmental Planning Law Act 1979 to inform their decision making as per recent approval of Element’s S96 modification.

I write in response to Cr Ibrahim’s comments to the Echo that ‘all the relevant legal requirements were met’ for the Elements resort’s S96 modification to the original 1987 DA. This is not the case from my discussions with the Environmental Defender’s Office’s outreach solicitor and several town planners.

Were Elements required to comply with current environmental planning laws or do the 1987 laws apply (at the time consent was granted)? Myself and others disagree with the proponent’s assertion in their S96 application that SEPP 44, Byron LEP 2014 and the Byron DCP do not apply to the modification application because these instruments commenced after the 1987 approval. The laws which applied at the time of approval continue to apply to the development. The aspects of the development which are the subject of the modification are required to comply with current laws.

Section 96(3) EPA Act requires the consent authority Byron Shire Council to take into consideration the relevant matters under Section 79C(1) in deciding the modification application. S79C(1) requires consideration of all relevant environmental planning instruments (including LEP and SEPPs), any DCP, any planning agreement, the regulations, any CZMP, the likely impacts, the suitability of the site, consideration of any submissions and the public interest. This means in particular the SEPP44 which includes state guidelines on koala management and the Byron LEP must be followed. Included too are EPIs Byron DCP and the Coastal Zone Management Plan.

So council’s approval of the modification on 17/03/16 say these EPIs do not apply to this S96 and this is legally incorrect. Also as per council’s meeting minutes from March 17, 2016 this S96 was approved without all of the relevant information being given to the public. Maps where roads will be built were not present for example. Do these proposed roads impact endangered flora and fauna on the site, the estuary, the littoral rainforest ? How are we or the consent authority to know if all relevant material for the S96 proposal were not provided by the Elements Resort?

Mayor Richardson and Cr Cameron moved that a motion be supported to halt decisionmaking until all documentation be provided by the Elements Resort and a site inspection undertaken. The motion was voted for by Mayor Richardson, Cr Cameron, Cr Dey and Cr Spooner. Voting against the motion were, unsurprisingly it seems, Crs Ibrahim, Woods, Wanchap, Hunter and Cubis.

Cr Ibrahim was scathing and extremely critical of CABS stating in the Echo last week we do not engage constructively with council. A formal copy of this letter will be sent to the general manager, staff and councillors regarding S79C(1) this week. Our alliance is constantly in contact with council, or writing submissions, emailing councillors, attending council meetings and communicating with council to include us in relevant meetings of council and other groups to enhance ongoing community participation and collaboration. We are doing our best to see the Community Charter for Good Planning is followed. We want positive, sustainable planning outcomes for the good of the community, environment and our resources into the future. It’s important correct information is given to the public and that is why we in CABS have come together and letters such as this need to be written.

I suggest more people start to get involved, read council minutes, ask questions and as many of us know in this day and age, query what you read in the newspaper.

Bethany Hudson, Sunrise Residents’ Group, CABS

 


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