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December 2, 2021

Legal advice, what legal advice? Byron council’s Fawlty Towers moment

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Byron Shire councillor Sol Ibrahim. Photo supplied
No legal advice: Byron Shire councillor Sol Ibrahim. Photo supplied

Hans Lovejoy

There was one moment at last Thursday’s Council meeting when you could hear a pin drop.

It was just after Cr Sol Ibrahim blurted out that everyone should be worried about the legal advice regarding the Coastal Zone Management Plan Byron Bay Embayment (CZMP BBE).

Everyone in the room started listening very closely, because well, there has been no legal advice tabled. So what does Cr Ibrahim know that everyone else doesn’t?

For those not up to speed, the CZMP BBE is a major coastal policy that, in part, aims to give legal certainty to a handful of beachfront Belongil landowners.

Their erosion hotspot home/holiday investment would get official seawall protection, and that would move us closer to Gold Coast-style coastal management.

The down side? Council doesn’t have the budget of the Gold Coast.

There are no sand-nourishment mitigation plans for the expected loss of an iconic beach. And there is no legal advice as to liability with a proposed 1.1km seawall affecting the adjacent Elements resort.

Regardless, Cr Ibrahim and his four supporting councillors would very much like for this to be approved ASAP, and provided the least amount of time for the public to assess the plans. That closed June 14.

Cr Ibrahim’s blurt all came about after Cr Duncan Dey (Greens) put a motion forward for a public poll on the Shire’s highly politicised CZMP BBE.

With the September 10 council elections looming, Cr Dey suggests the Electoral Commissioner could administer a poll that would accompany elections.

Councillor Dey told the chamber that Cr Paul Spooner explained the situation well previously. ‘It has been five years to develop a plan, over a problem that has been going for over 30 years, and three weeks [were given] for the community to comment.’

‘I don’t think it’s appropriate or adequate. And we have the perfect forum in which to gauge the community feeling on this.’ Cr Dey’s motion, like many before it, was later shot down in flames by the five in control of the chamber.

Unclear question

Cr Ibrahim responded by explaining that the question was not clear enough for a poll.

He gave examples of CSG and marriage equality and then compared it to the question posed – which was: ‘Do you support the removal of rock walls from the present 1.1km length of beach at Belongil?’

‘By whom?’ Cr Ibrahim asked, ‘At what cost? Is it legally possible? Is it binding on Council? Are there court cases still to be heard? The questions go on and on and on.

‘We’re still waiting for legal advice that this council resolved to seek in April.

‘I believe the cost has come back – the quote – so exorbitant that staff don’t really appear to know what to do with it, okay?

‘We don’t have the most basic answers to questions… the Supreme Court is yet to determine a matter we’re embroiled in… it goes on and on. I was going to ask Councillor Woods whether a poll had been conducted in 2012, when the previous CZMP was put up.

‘Did we ask the community then whether they supported the removal of rock walls? No we didn’t. But now we need to – I wonder why.’

Cr Ibrahim then said that the previous CZMP under a previous council – which favoured planned retreat but which was pulled at the last minute – only allocated three paragraphs to properties that do not have conditions on them for planned retreat.

‘[The previous CZMP] says it will rely on section 121 (B) of the [Environmental] Planning Assessment Act [1979].

Cr Ibrahim said that section of the Act deals with structures that are a danger to the public or are dilapidated.

He argued that the houses in question could not be considered as a danger or dilapidated owing to their being protected already by a seawall that can withstand a one-in- fifty-year event.

‘And we are going to go to the Land and Environment Court and convince a judge that that building is a danger to the public? And on that basis we are going to order its demolition? The chances are zero to none. And even if so, you would have to run the same case for every single property.’

After he finished speaking, the mayor immediately asked staff to clarify what legal advice had been tabled, given no-one else appeared to have been given any.

General manager (GM) Ken Gainger replied that he received a note from legal service co-ordinator Ralph James earlier in the week, ‘expressing some real concerns about the implications and cost implications for preparing that advice.’

‘My advice to him was to prepare a report for the next meeting,’ he said.

The mayor then asked, ‘Why is it that Cr Ibrahim seems to know information that we don’t? How did that happen?’ The GM replied that he had ‘no idea’.

‘I’ve had no conversations with any councillors about this,’ Mr Gainger said.

‘I can’t speak for Mr James, but find it surprising if he did.’

Pressure applied

Cr Dey wasn’t going to let it go, and asked Cr Ibrahim what the advice was and how he knew about it.

Cr Ibrahim mumbled out of microphone range then said, ‘I don’t recall the exact words, but my understanding was is it was going to prove to be quite an expensive affair and that a report will be coming to council to explain exactly what that means.’

No legal advice

The mayor asked when that could be expected, to which the GM replied that it could be added to the agenda but may mean a reshuffle of councillors’ available times, as only a certain amount of time had been allocated.

The mayor asked the GM: ‘So we’ll get a report on legal implications on the CZMP after we resolve on the CZMP?’

Mr Gainger replied, ‘If Council wishes to have that advice, and I can understand the logic behind it… I’ll make sure there’s a report on June 29.’

Cr Ibrahim also pressed the GM for clarity on what legal advice to expect. He said the request for legal advice was made in February, which gave Council staff two months ‘to provide us with a report, with the advice.’

‘April 29 has come and gone, and we did not receive any advice, including the fact that we were not going to get the legal advice and any reason for it.

‘So when you are telling us now that we could have something on the agenda for the 29th, is that in the form of legal advice that answers the questions that were asked in that resolution or will it tell us it’s problematic and we can’t get it?’

Mr Gainger replied that based on the information from Mr James, ‘It’s saying there are potential implications in terms of reporting that collective advice.’

‘And secondly there’s a substantial piece of additional work that would need to be done by our Sydney-based lawyers to complete that information for council.’

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