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Byron Shire
October 4, 2022

The state, not council, liable in rock wall case

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Having witnessed the appalling spectacle of a Byron Shire Council meeting to approve a CZMP that will impose a rockwall at Belongil and destroy our beaches, I like many others felt deflated at the state of our local democracy.

There were also many  references to the impact of the Jonson Street rock works, so I  was further dismayed to read of the Supreme Court case against council for ‘significant financial loss and diminution in value of their properties’ by 16 plaintiffs.

We can only assume that the 16 are Belongil landowners. The Echonetdaily report states that this supposed financial loss is due to in part to the ‘works in front of the Jonson Street carpark’ and a reference to ’the settlement proposal’, but of course all the detail of this is confidential

But, if this is the case, why is council being taken to court, when it is surely also a responsibility and therefore a liability of the state government.
It is a general understanding that the works at Jonson Street were constructed after the 1974 storms that saw the demolition of the old surf club and a new club built further back.
The new surf club was constructed after the 1974 storms but it is unclear when the first works were undertaken on the rock protections at Jonson Street that are located on Crown Land.
It is relevant when and where the works were undertaken. Firstly they are on Crown land and the general knowledge that council constructed the works doesn’t negate the fact that the state government must have approved the works on their land.
Therefore the legal action should include the state government as the approval authority and the land owner.
If the case also presents that there is a duty of care by the council then that duty of care is also with the state.
 If the matter is about ‘damages in negligence’ then there are precedents regarding this. The NSW Supreme Court of Appeal determined the Egger v Gosford Shire Council 1988 case for the construction of a building (1968) and beach works undertaken during and after the 1974 storms and that this negatively impacted on the Egger residential property that in 1978 was eroded and had to be demolished.
The earlier case in the Supreme Court (Smart J) had dismissed an action for negligence arising and that ‘The Council owed no relevant duty of care to the appellant under the particular circumstances’. It concluded that:
‘In 1968 and 1974 no council exercising its powers would reasonably have appreciated the matters litigated, their complexity and difficulty. It would not have recognised the problems. No council acting reasonably in those years could have been expected to undertake an in-depth investigation into the evaluation of these matters. If it had sought or undertaken any investigation or any advice in 1974, it could well have been told that the proposed seawall would not have any adverse erosive effect on significance on neighbouring properties because of its scale.  hat would not have been negligent advice.’
 
The circumstances of this case considered the ‘foreseeable risk’ at the time of the construction of a three-storey residential building (1968)  and the subsequent dumping of materials on the beach to protect the buliding that was at risk by the erosion caused by the 1974 storm.
The appeal judgement by Hope and Clarke JJA set out the facts for upholding the decision of Smart J in the Supreme Court.
The question is, ‘Is Byron Council being sued on the basis of negligence for decisions of the past, if so, what are the facts?’ and should the community be properly informed? and is it alone or does the state government bear responsibility also?
Jan Barham, MLC

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