By Luis Feliu
Byron Shire Council will next week consider returning public open foreshore land controversially encroached on by the town’s government-run holiday parks back to the wider community.
Councillors have been called on to support a notice of motion at Thursday’s meeting proposing what locals say is a fairer outcome for residents dealing with noise, traffic, parking, access, overcrowding and other major amenity issues not addressed by the park managers in their plan for the parks’ future.
The move, according to members from the Foreshore Protection Group and town’s progress association, ‘retains public land for public use’ and addresses long-recognised constraints such as preserving the historic use and protected WWI memorial trees at Terrace Park.
The community has for years opposed the encroachment of park boundaries into public space and the foreshore, calling it a ‘land grab’, as well as some major elements of new plans for the upgrade of the three parks (Ferry Reserve, Massey-Greene and The Terrace).
The NSW Crown Holiday Parks Trust (NSWCHPT) claims it will comply with setback regulations and reinstate public access obstructed by park activities, which council licensing requires.
The trust, according to its CEO, has complied by the rules.
Longtime Brunswick Heads community activist Michele Grant says this is ‘hardly a win/win for the community but a very good deal for the trust’.
‘In fact the community is not getting “more foreshore open space”, we have less public open space overall with the loss of half of ferry foreshore with the inclusion of Riverside Crescent road reserve in Ferry Park, the loss of Lot 7005 and the Southern area of Terrace park,’ Ms Grant told Echonetdaily.
She said that the trust was ‘pushing for inclusion of all encroached land’ in their proposed new agreement with council.
‘We are urging Council to retain public land for public use,’ she said.
Next week’s notice of motion identifies previous resolutions endorsed by council that specifically address proposed boundary issues.
Ms Grant said in the years between 2012 and 2015 council ‘consistently resolved to restrict commercial activity on contentious encroached lands at Ferry foreshore, Lot 7005 at Massey Greene and in the southern section of Terrace Park’.
But she said the trust’s latest concept plans ignore BSC’s ‘myriad’ resolutions and includes ‘virtually all disputed lands within the operational boundaries, claiming “continuous existing use rights” under Division 10 s107 and 109 of the Environmental Planning and Assessment Act 1979’.
Deal not a win win
‘Clearly there is significant disagreement between Byron council and the trust as to “legal continuous use” of disputed lands.
‘The trust has finally conceded to implement the legally required 10-metre setback for built structures along the riverbank in Terrace Park and Massey Greene and will reinstate public access along Simpson’s Creek, which was a council requirement repeated ad-nauseum since 2000.
‘So the deal is the Trust will comply with setback regulations and reinstate public access obstructed by park activities, in exchange council will allow them to resume and redevelop “encroached: public lands. Hardly a win/win for the community but a very good deal for NSWCHPT,’ she said.
‘In fact the community is not getting “more foreshore open space” we have less public open space overall with the loss of half of ferry foreshore with the inclusion of Riverside Cres road reserve in Ferry Park, the loss of Lot 7005 and the southern area of Terrace park.
‘The notice of motion recommendations do not accord with the trust’s proposal to maximise park profits.
‘The motion proposes a fairer outcome for local residents dealing with noise, traffic, parking, access, overcrowding and other significant amenity issues not addressed in any concept drawings. It retains public land for public use and reflects the long recognised constraints on land use – from flooding at Ferry, lack of public space at Massey Greene and the historic use and protected trees at Terrace Park. All matters of significance to our local community if not NSWCHPT.’
Comment has been sought from park management.
Longtime Brunswick and District Progress Association member Patricia Warren said lobbying councillors before Thursday’s notice of motion was critical to the preservation of foreshore parklands in Brunswick Heads and keeping them outside the operational boundaries of the caravan parks’.
Mrs Warren said the trust ‘is leveraging their claims to Lot 7005 in Massy Greene, the grassed foreshore at Ferry and the whole of the WW1 Memorial Pine Park on the Terrace on “continuous use rights”.
‘Their case is tenuous at best. Their evidence dismisses documented decades of opposition to their illegal encroachments onto these parklands,’ she said.
Licensed in good faith
‘It also dismisses Byron council’s licences given in good faith to allow the caravan parks to continue to operate whilst Plans of Management were prepared and continues to leverage its argument that it is planning its development within “agreed boundaries.”
‘The legality of that position would not pass independent scrutiny!
‘Photographic evidence used by NSWCHPT to justify their claims is poor and again would not pass independent scrutiny.
‘Perhaps readers would like to judge the credibility of NSWCPT’s claim of “continuous use rights” in the following context:
‘The southern section of the Terrace was the Brunswick Heads Flora and Fauna Reserve. It was planted out as a WW1 Memorial commencing 1918.
‘Illegal caravan park encroachments were identified by Byron Shire Council (BSC) in 1988. BSC has endeavoured to address these primitive camping encroachments.
‘In response BSC was dismissed in 2006 by Minister Tony Kelly and North Coast Accommodation Trust not only changed the use to short term sites but during the Clause 45 Sewage Moratorium installed a ‘temporary’ amenities block at the southern end for Xmas 2007, added to the sewerage load and extended the area of the operation of the caravan park.
‘All of this was and continues to date in an area protected under the Threatened and Endangered Species Act and part is identified on BSC’s map as SEPP 14.
‘Now, the Trust is intending to develop the area for residential purposes and leveraging its arguments on highly surreptitious grounds under the Residential (Land Lease) Communities Act s136 and the EP&A “continuous use rights”.
‘A similar pattern of behaviour by NSWCHPT is being applied to the flood prone foreshore and road reserve at Ferry and part Lot 7005 in Massy Greene.
‘Parks do not fall as manna from heaven. They have to be fought for.
‘If community members want these invaluable foreshore lands kept as open space for public recreation, then councillors need to know now in readiness for their decision,’ she told Echonetdaily.
It is worth looking at the numbers involved in this land grab.
Under compulsory acquisition in Government Gazettal Notice 1233 of 4 May 2012, the Crown took Council owned land as follows
a. Terrace: 4,331.2 sqm
b. Massy Greene: 2,758.0 sqm (plus transferrred on 25 Sept Lot 7004 of 2,200sq from Crown Land for
Maritime Purposes to Crown Land for Public Purposes
c. Ferry 23,426.0 sqm
TOTAL: 30,515.2 sqm + 2,200sqm with intent to include this land into the commercial operation of the caravan parks i.e. 32,715.2sqm The tenure of all this land is now Crown Reserve.
It is my understanding to date that Council was not financially compensated for the compulsorily acquired land.
In context, Council’s Resolutions under s68 of the Local Government Act, which gives them power to determine the boundaries in which the caravan parks operate for commercial purposes, the demand to keep
a) unfettered foreshore access along the foreshores at Massy Greene and Terrace with a 7m setback to the top of the riverbank and an additional 3m buffer zone to establish a 10m setback to all built structures (including moveable) is more than reasonable.
b) exclude the foreshore at Ferry and designate it as shared open space and public recreation leaving 20,302 of compulsory acquired land – the Old Pacific Highway and the Fins Building- to be formally added to the caravan park
c) leave part of Lot 7005 as per Council’s resolution for public purposes and access to the reinstated boat ramp that is integral to both Massy Greene and the Master Plan for the Boatharbour
d) this leaves the highly contentious southern area of the Terrace where the WW1 Memorial Pines are located. Including the compulsorily acquired land this is now an area of approx 6500sq to 7000sqm. Councillors will need to decide whether or not to
i) return this to open space and public recreation as was intended
ii) allow seasonal primitive camping but remove the southern amenities block
iii) give it over to residential development for long term tenants as desired by NSWCHPT who have undertaken an appropriate tree management strategy to protect the WW1 Pines. However that undertaking has no merit in context of experience with practise tree management of allowing compaction of soil over the critical root system, discharging of untreated grey water and trenching around sites. Further evidence of a lack of trust is what has been evidence with 20 compensatory plantings of Coastal Cypress Pines in the Terrace. 40% are dead. In another area 5 seedlings were planted opposite the new amenities block. 100% are dead
If you are at all concerned about the impact of NSWCHPT’s development plans for OUR LAND,then lobbying councillors now is critical. Their email addresses are easily found on byron.nsw.gov.au
BYRON SHIRE COUNCIL
POLICY NO. 5.52
COMMERCIAL ACTIVITIES ON COASTAL AND RIPARIAN CROWN RESERVES
2. MISSION STATEMENT
Commercial activities on beaches and adjoining reserves must not diminish the recreational amenity of residents or visitors who are attracted to this Shire for its natural beauty and environment.
It is our special responsibility to ensure ecologically sustainable use and protection of the coastal zone for the benefit and enjoyment of future generations.
3. OBJECTIVES OF THIS POLICY
To retain coastal Crown reserves, that are under the care, control and management of Council, where authorised, or as the Reserve Trust Manager, as places for passive and active recreation where appropriate for residents and visitors.
To set out what activities can be carried out on coastal Crown reserves with, and without, permission of Council, where authorised, or as the Reserve Trust Manager.
To regulate the level of temporary business or commercial activity on coastal Crown reserves under the care, control and management of Council, where authorised, or as the Reserve Trust Manager.
To provide criteria for determining applications to carry out commercial activities on coastal Crown reserves.
Patricia Warren quotes the Residential (Land Lease) Communities Act 2013. This legislation was introduced to set out, clarify and legislate the rights of all permanent residents in residential parks, which up till then was lacking and much needed. This is why this legislation was supported by all sides of the NSW parliament, including the Greens Jan Barnham. Some of the sections in this legislation that are particularly important to residents are s105: “A home owner is entitled to sell the home while the home is located on the residential site,” s 107:”The operator of a community must not cause or permit any interference with, or any attempt to interfere with: (a) a home owners right to sell a home,” s135 (1) ” The operator and the home owner under a site agreement may agree to the relocation of the home owner to a different residential site, whether within the same community of within another community with the same operator,” and s135 (3) A person must not coerce or attempt to coerce a home owner into relocating to a different residential site. These rights apply to all Brunswick Heads Parks residents, including all residents in the Terrace Reserve Holiday Park. Any Council resolution that intentionally, or otherwise, strips away these rights can now be simply ignored and/or easily challenged in court. As is probably the case with s136 as it completely goes against the spirit and intention of the rest of the legislation. Besides that, contrary to what Patricia states, the NSWCHPT have an agreement with the residents that they will not use nor enforce s136.