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.’
‘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.
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.”
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
