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Byron Shire
April 23, 2021

MLC claims Belongil homes ‘unapproved’

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Part of the catchment, the brown Belongil Creek running to the sea. Image Google Earth
The Belongil Spit seen from the air. Image Google Earth

Former Byron shire mayor, now Greens MLC, Jan Barham has told parliament that nine properties on the Belongil Spit, including that of well-known rock-wall advocate John Vaughan were determined to be ‘unapproved works’ in a 2002 audit, as they ‘lacked State concurrences under clause 32 (3) of the Byron local environmental plan’, based on a series of aerial photographs of the area over a number of years.

Ms Barham told parliament that in a 1990 decision of the Land and Environment Court, ‘John Vaughan appealed the refusal for concurrence by the director of the Department of Planning of a dwelling on Belongil Spit, Byron Bay.’

Greens MLC Jan Barham. Photo Eve Jeffrey
Greens MLC Jan Barham. Photo Eve Jeffrey

‘Evidence presented to the court by the regional manager of the Department of Planning stated: “It is clear from the information that the proposed development is inappropriate on this highly unstable, erosion prone site. The site is subject to a short term storm event, long term recession and the Greenhouse Effect”,’ she said.

‘The outcome was that the appeal was dismissed. Therefore, the decision of the application for a dwelling on this land was refused.’

Ms Barham added that, ‘In 2009, when another court case was initiated by the Belongil residents against the council to seek protection works, a Byron Shire Council affidavit identified the lack of approval of the Vaughan house and unauthorised works on the nearby Burke property.’

‘Now, the council majority is proposing to build a 1.6-metre rock wall in front of the properties at Belongil where, it is now clear, many have unauthorised work and all but two appear to have been sold or changed owners since 1988. The reality is that most have bought in full knowledge of the limitations for development and protection.

‘So when quotes of the cost of maintaining the 30-year principle of planned retreat come at a cost of $40 million, it is clearly wrong. There is no way government or the community should compensate property owners for buying properties that were known to be at risk or fund the building of protection works,’ Ms Barham told parliament.

Belongil landowner John Vaughan addresses council (October 30, 2014). Photo Eve Jeffery.
Belongil landowner John Vaughan. Photo Eve Jeffery.

Parliamentary privilege

But Mr Vaughan has hit back, accusing the MP of being ‘factually incorrect on many counts… of my home at Belongil, where we have lived and brought up our family since 1987. ’

In a statement to Echonetdaily regarding Ms Barham’s comments, Mr Vaughan said he was ‘disgusted’ that Ms Barham was ‘using the protection of parliamentary privilege’ to make what he alleged were ‘slanderous statements’ .

He has warned the MP that if she were to ‘step outside of the protection of parliamentary privilege and repeat the same statements, she should be prepared and ready to defend them at law, as I am more than happy and eager to test her in a forum where facts count for something.’

Quotes from Hansard

The following is former Byron Shire mayor Jan Barham’s speech to the chamber on May 11 and her account of the area’s coastal management history.

Ms JAN BARHAM (18:30): The Byron to Hastings Point Erosion Study undertaken by the NSW Public Works Department [PWD] and completed in 1978, investigated the dramatic increase in coastal erosion problems after decades of storm and cyclone activity. The study identified options for future management and identified areas of immediate, 50 years and 100 years erosion risk. In 1979, the State Government took a leading role in the requirement for a dual consent role with local government, which meant that poor decisions of a council could be overridden if the State did not approve. In 1986, the administrator of Byron Shire Council, Jim Waugh, presided over public meetings in Byron shire to explain how the PWD study options had translated into draft planning guidelines for the land use management. A front page report in the North Coast Advocate in1986 titled, “Erosion Uses Spelled Out “, reported:

“The onus will be on the property owner to remove or relocate the building when necessary or relocate the building when necessary or he may face prosecution by the council for non-compliance with development consent conditions .”

In 1988, the New South Wales Government approved the local environmental plan and the council adopted the development control plan which included the coastal hazard provisions contained in part J, known as planned retreat. The risk zones and recognition of planning constraints were informed on land titles and section 149 (5) certificates. This was and still is a major feature of the coastal management program, and informs prospective property owners of the limitations of the use of the coastal lands. But there has been no relief from the endless legal challenges of the coastal restrictions embedded in the council’s planning instruments and supported by the State Government. In a Land and Environment Court judgment by Hussey J. refusing the 1996 proposal for a 250‑metre rock wall at Belongil Beach in Byron Bay it is stated:

“The use of Development Control Plans to outline detailed planning policies and controls for the coastline and to impose conditions on new developments and redevelopments, the use of Local Environmental Plans to introdu ce appropriate land use zoning, identify consent uses, etc and so control the likelihood of development being inappropriately sited and thus reduce the damage potential of new developments.”

In the discussion on the evidence, Hussey J. stated in his judgment:

“The determination of this development involves an assessment of the relative private interests of the property owners to protect their properties from beach erosion, against the wider public interest in terms of future beach amenity.”

In a 1990 Land and Environment Court case, applicant John Vaughan appealed the refusal for concurrence by the director of the Department of Planning of a dwelling on Belongil Spit, Byron Bay. Evidence presented to the court by the regional manager of the Department of Planning stated:

“It is clear from the information that the proposed development is inappropriate on this highly unstable, erosion prone site. The site is subject to a short term storm event, long term recession and the Greenhouse Effect.”

The outcome was that the appeal was dismissed. Therefore, the decision of the application for a dwelling on this land was refused. In 2002 , an audit of concurrences granted to development at Belongil under clause 32 (3) of the Byron local environmental plan revealed that there were nine properties identified from a review of aerial photos dated 1996, 1999 and 2000 that had no State concurrence and, therefore, were unapproved works.

In 2009, when another court case was initiated by the Belongil residents against the council to seek protection works, a Byron Shire Council affidavit identified the lack of approval of the Vaughan house and unauthorised works on the nearby Burke property.

Now, the council majority is proposing to build a 1.6-metre rock wall in front of the properties at Belongil where, it is now clear, many have unauthorised work and all but two appear to have been sold or changed owners since 1988. The reality is that most have bought in full knowledge of the limitations for development and protection.

So when quotes of the cost of maintaining the 30-year principle of planned retreat come at a cost of $40 million, it is clearly wrong. There is no way government or the community should compensate property owners for buying properties that were known to be at risk or fund the building of protection works.

John Vaughan replies

Below is the text of Mr Vaughan’s response to Echonetdaily.

I am disgusted by Ms Barham’s attack on me and my family and her use of parliament’s protection to do so. She is factually incorrect on many counts including the her statements regarding legality or otherwise of my home at Belongil, where we have lived and brought up our family since 1987.

Ms Barham is no ordinary bystander here, unaware of the factual situation. She is a member of the NSW Legislative Council. She was mayor of Byron Shire Council for many years. With that background, she has had ample opportunity to verify the facts for herself. As such, her statements about me and my family are a serious slander and are defamatory.

That Ms Barham has made these slanderous statements using the protection of Parliamentary Privilege is an outrage. This is the Coward’s Castle approach by a parliamentary seeking to use parliamentary privilege to slander and defame a private citizen without affording the other party a legal right of reply. The abuse of parliamentary privilege is a very serious matter. I will be in contact with the president of the NSW Upper House to have this matter dealt with by the Privileges Committee so that I am at the very least afforded a right of reply in the parliamentary record or Hansard.

However, if Ms. Barham cares to step outside of the protection of parliament privilege and repeat the same statements, she should be prepared and ready to defend them at law, as I am more than happy and eager to test her in a forum where facts count for something.”

 


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11 COMMENTS

  1. It seems quite simple, Mr Vaughan need only produce evidence of the concurrence provided by either the council at the time or the State Govt. and this argument can move on.

    HOWEVER, if evidence of the concurrence cannot be produced (and please, “the dog ate it” will not be accepted) then Mr Vaughan and his cohorts need to shut up and deal with the consequences of their own selfish actions.

  2. From reading the Hansard of Ms Barham’s speech, I can only see two places where the Vaughan property is mentioned. Is it the case that statements in the Hansard regarding the 1990 appeal by Mr Vaughan are not correct? If not correct, what are the facts? If they are correct, how do they constitute slander and defamation?

  3. How on earth could planned retreat only cost the community $40m? There are 175 or so lots at Belongil, all land titles that were once sold by the Crown. With planned retreat (as opposed to protection) the entire spit is at risk. This is not just about the 30 beachfront properties and the land that they represent (which would be considerable value even if they had caravans parked on them). There are also the properties in the 2nd row that would be at risk, the roads, power assets, sewage, water, community land and crown land (which could otherwise be sold to fill Council coffers) beach access points for surfing etc. Then you consider the value of the businesses, the Treehouse, the Yoga studio, the College, their employees and the jobs created. And what about the lost rates looking forward over the next 15 years? The stamp duty payable to the state Government (I paid $200k in stamp duty) and then the big one: The lost tourist income. There are properties at Belongil that would bring in $200k + per year each which mainly goes to cleaners, laundry businesses, property managers, maintenance people… And what about the many many people staying at Belongil who spend much more in town supporting jobs for the whole community. And then you consider that you have just wiped out a ‘suburb’ of Byron Bay that is equivalent to Wategoes in terms of size and economic activity. So you create less property supply and push up real estate prices and congestion elsewhere. And this is all because the Council once built a wall in town that put Belongil at erosion risk for the benefit for owners of properties to the south east of Johnson St – who all benefit from a wider beach at Belongil’s expense? It is all one bay subject to the same coastal processes – so you either protect or retreat the whole town. You can’t protect one half of the town and then impose retreat on the other side? Unless of course you have a personal issue with some of the people that live there!

  4. Well, action would have been taken in 2002 from the audit finding. What action was taken by Byron Council? Councils are overseen by the NSW State Government by law.

  5. Well welll welllll Sol , Chris, Di, Rose , Alan …. The question is why should the community pay when the buyers know they are purchasing and building on an erosion zone with a planned retreat policy

  6. While John Vaughan expresses outrage at Jan Nathan for daring to make factual information public, he has somehow omitted to tell us what he considers to be the truth of the matter, ie what is wrong about Ms Barham’s statement. That is all that’s required to clear his good name – so please, Mr Vaughan, enlighten us. Litigation is not required, only facts.

  7. Donald, what exactly are the community paying for? Under the draft CZMP Belongil landowners will be required to pay $12m. That is right, $12m. The ‘community’ (except for those at Belongil) pay nothing but get a new walking path, protection of the environmentally sensitive spit (which then protects the town from flooding) ongoing access to Belongil roads, beaches and access points. And remember that all the damage at Belongil has been caused because the Council once chose to protect landowners to the south east of Jonson St with the badly designed (almost vertical) rock wall and groyne in town. The 50 and 100 year erosion lines in Council reports show that much of Cavanbah, Main beach, Clarkes and even Suffolk park will suffer similar erosion, so residents in these places can also soon look forward to contributing for their own protection – or moving out and giving up their land under planned retreat if that policy is ever actually brought in. We all live on one bay which is affected the same coastal processes, so whatever the policy is it should apply equally everywhere. Those living in Suffolk Park or Cavenbah St or the town end of Shirly St are in the same situation that Belongil owners were once in. The draft CZMP provides protection for the whole town and also includes upgrading of the rocks at Jonson St. But there is no way that this could ever happen without protection at Belongil, now that experts have advised that these rocks are the culprit of the erosion. I was at the Belongil residents Council session today and it was good to hear the CZMP properly explained. I encourage all to read the document or attend information sessions.

  8. The sense of entitlement and blatant self interest of the residents of Belongil is jaw dropping. Most of us would keep our heads down if we owned an unapproved dwelling. Not this mob. They want the local community to contribute an estimated $28,000,000 to protect their dwellings. And sanction the destruction of a public beach.

    Is it any wonder opposition to the sea wall is deep rooted? Better face up to it. There are more than enough people willing to contribute to crowd sourcing the legal action required get to the bottom of Jan Barnham’s claims. Or indeed any other legal action required to stop this wilful act of environmental and community vandalism.

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