Greens accused of folding over Bruns parks negotiations  

Hans Lovejoy

Deep division and political backflips have emerged within local Greens members over a move to put plans of management (PoM) on public exhibition for two of the three holiday parks in Brunswick Heads.

The move will lead to Council’s acquiescing over a 20-year encroached-boundary battle and formalise the transfer of ownership of land they once managed to the state government-run NSW Crown Holiday Parks Trust (NSWCHPT).

Residents have fought a long campaign against different incarnations of NSWCHPT after disgraced Labor planning minster Tony Kelly took control of the assets – and revenue – away from Council in 2006.

A rescission motion for the upcoming May 25 meeting is authored by Cr Sarah Ndiaye, and is supported by fellow Greens Crs Michael Lyon, Jeanette Martin and National Party-aligned Cr Alan Hunter.

With Greens mayor Simon Richardson’s support it will pass, despite that being a complete backflip on his position when the POMs were initially adopted by then-NSW minister Kevin Humphries in 2014.

He told Echonetdaily last Sunday, ‘I support the rescission motion and I believe it will give a better outcome than we could get any other way.’

The previous April 20 motion, supported by everyone except Cr Hunter, will be rescinded, or overturned, and instead Council will support NSWCHPT’s PoMs for Ferry Reserve and Massey Greene holiday parks.

A decision on the Terrace Reserve, which contains the Cypress Pine WWI memorial park, has been deferred until Council’s June meeting and workshops are proposed before.

According to Cr Michael Lyon, the deal with NSWCHPT will see ‘unfettered public access to the foreshore through minimum 10m setbacks from the Brunswick River, access to boat ramps, and open public space in lot 7005 at Massey Greene, including a children’s play area.’

Cr Ndiaye says that NSWCHPT will manage the 10m setbacks; NSWCHPT CEO Steve Edmonds confirmed this and told Echonetdaily that if the PoMs are adopted ‘this will then become legally binding on the Trust. The risk for Council and the community disappears.’

Acknowledging it will be an unpopular move, Cr Ndiaye said, ‘Ultimately we are looking to get a great foreshore, not an endless battle.’

Cr Ndiaye says the previous motion triggered a response from NSWCHPT that would see them revert to the previously approved PoMs which does not include the current promises.

‘I’m concerned the previous resolution was very ambiguous and would be interpreted as a “deemed refusal.” It flies the the face of all the negotiations thus far,’ Cr Ndiaye said.

Legal advice needed 

While residents are up in arms over the Greens capitulating over the alleged land grab – both local Greens MP for Ballina Tamara Smith and Cr Cate Coorey told Echonetdaily independent legal advice should be sought to inform Council’s position.

Ms Smith said, ‘… there has never been a definitive and legal determination around maps and boundaries.’

‘What were once fairly informal areas for caravans and camping at Christmas and school holidays in Bruns have grown into first a business overseen by Council and more recently with the advent of the Crown land trusts a highly commercial business opportunity for the government with its ever-increasing thirst for a commercial return.

‘The boundaries of where the holiday parks start and finish are contested sites.

‘I feel that this is at the heart of the frustration that the community feels because until recently there were no formal maps, only a land-grabbing process by the parks and the maps that are now before us are highly contested.

‘Pursuing the legality of the alleged boundaries of the parks makes a lot of sense to me as a state MP because it isn’t right for the Crown to acquire public land for commercial purposes by stealth or hoodwinking.

‘The protection of endangered tree species, the koala corridor, the memorial pines and the general health of the foreshore are all significant environmental matters that need to be addressed before the community can sign off.

‘It seems very unfair that Council have been put in a position where there is a suggestion of a threat that if they don’t agree to the boundaries being put to them by the Holiday Park Trust that the capacity for Council to advocate for changes will disappear, be taken out of their hands and something worse could be foisted upon them/us.’

Licences v PoMs

Any caravan park operator must have Council approval, which Echonetdaily understands is defined under s68 of the Local Government Act 1993.

For years, residents have argued that those licences and associated boundary issues should be addressed before the adoption of any PoMs.

Adopting any PoMs, they say, will legally bind Council to the contested boundaries.

Cr Coorey says she asked the NSWCHPT four months ago for the gazetted boundaries at the first Council meeting with NSWCHPT.

She is yet to hear back. Echonetdaily asked NSWCHPT CEO Steve Edmonds when that information will be supplied but he did not reply.

He did say however that Council, ‘has a separate approval role under the Local Government Act 1993, but this is subject to the minister’s decision-making.’

Former Greens councillor Duncan Dey told Echonetdaily he had asked NSWCHPT for the gazetted boundaries four years ago.

‘A better way forward may be to establish these boundaries before signing off on the PoMs. Assenting to the PoMs first, you can hardly come back later and shrink the operating areas.’

On this point, Cr Ndiaye provided the following advice from staff: ‘… this would bring Council back to where it started.’

The staff member’s advice continued, ‘The Trust previously submitted applications for areas that Council did not agree with and which were reduced or changed by resolution. These conditions were not agreed by the Trust and the approvals referred to the minister.’

‘By negotiation, it was agreed to issue approvals to allow the PoM to set the boundaries following negotiation and with the benefit of consultation. As a result of this process the public access along the foreshore has been negotiated for all Holiday Parks and more public areas included.

‘To go back to a negotiation at the application stage and through this process could mean all bets are off and the disputed conditions including boundaries are back with the minister.

‘Through the application process there is no consultation as there will be when the revised concept plans are exhibited.’

Echonetdaily asked Cr Ndiaye ‘Why hasn’t council pursued this ahead of supporting their POM maps?’

She replied, ‘The gazetted boundaries can be found on both crown lands site and NSWCHPT. I know these are hotly contested by some so you’re better to talk to them.’

Greens out of step

Independent Cr Cate Coorey said, ‘My previous notice of motion and these actions by the community through Council are being somehow seen as interfering in the process of negotiations.’

‘I would say the process of negotiation was not a good process – for example, the walk through in the park and submissions were made. We haven’t actually seen those submissions. We’ve only seen reports on what people said. For me there’s no transparency there, and that process which was supposed to inform these concept plans is flawed. I also think the new councillors really haven’t listened to the community, and I understand the need to view this afresh, however you can’t just ignore the history of this situation. In determining the boundaries, you have to understand what went before. When you realise how much land we’ve actually already given them, to cling to a few important bits is not a belligerent community – it’s actually a community that has conceded quite a lot.’

Echonetdaily asked Cr Coorey: ‘Surely the state government just does what it wants? Aren’t you concerned you are overplaying your hand here?’

Cr Coorey replied, ‘[Given] my understanding of the Local Government Act and Crown Lands Act – and proper process – I think the community has negotiated in good faith.’

‘I don’t see that Crown parks have been the good guys in this. It’s not about oppositional politics, it’s about an outcome. I understand the council wants an outcome but it has to be a good outcome. Crown Parks have already done pretty well out of this deal and I just want to see the community do a little bit better.’

‘I’m also surprised [by] the amount of work that the NSW Greens have been doing on the Crown lands issue at a parliamentary level yet the Greens in Byron are out of step with that position.’

Greens berated

Michele Grant from the Foreshore Protection Group also berated Greens councillors for being ‘too busy to attend any community meetings,’ and says they are ‘rushing this through with unseemly haste.’

Indeed Cr Ndiaye’s rescission motion was amended as late as Thursday May 18 to defer any decision on the Terrace and the WWI memorial park. And that update, along with the extra attachment of the two concept maps only became available online on Saturday May 20.

As for the Ferry Reserve, Ms Grant says that coastal redgums have recently been removed from the area.

‘These trees are listed as koala food trees under SEPP 44.’

‘The foreshore has been identified as a koala corridor which creates a link from west to east under the Pacific Highway bridge.

‘A program needs to be implemented to replace this lost habitat with a view to rehabilitating the corridor. The rescission motion from the Greens councillors will hand this fragile vulnerable public parkland over to NSWCHPT for commercial development, literally privatising public lands without a hint of hypocrisy, and signing off on the destruction of protected ecological communities and the koala corridor.’

Ms Grant says, ‘If the rescission motion gets up it allows a free for all and Council will have virtually no input or control over future development of our public lands by NSWCHPT.’

NSWCHPT statement

NSWCHPT CEO Steve Edmonds told Echonetdaily:

• NSWCHPT (the Trust) inherited control over the Terrace Reserve Holiday Park, Massey Greene Holiday Park and Ferry Reserve Holiday Parks from Byron Shire Council Trust in 2006. The Trust has made some improvements to the operations since then, but has not changed the park boundaries.
• Both the Trust and Council are obliged to work within the Acts which govern them. These Acts include the Local Government Act and the Crown Lands Act.’
• The Trust prepared new plans of management for improvement of the parks in 2014, and the Minister approved these under the Crown Lands Act after a public consultation process.
• There has been significant community comment on the approved 2014 plans since then.  The Trust has heard these comments and so it has not yet implemented the 2014 plans despite its rights under the Crown Land Act to do so.  Instead, the Trust is working with Council and community to prepare the new plans, and it will present the new plans for public consultation once they are prepared.
• Public consultation is the right time for members of the community to have their say on the new plans when they are exhibited. All comments during the public consultation process will be considered carefully, before any proposal is submitted to the Minister for approval.
• The Council also has a separate approval role under the Local Government Act, but this is subject to the Minister’s decision-making as well.
• Given the amount of time that has passed since the 2014 plans of management were approved, the Trust is applying to the Council for interim approval to enable it to continue with the existing park operations until the new plans are finalised.  This will also give the Trust an opportunity to address some of the technical matters relating to the park operations which it inherited from the previous operators.
• It is disappointing that a small minority of people have made personal attacks on members of the Trust.  The Trust is doing its best to find solutions which will deliver the best outcome for all people who may use the parks and the local community.  We must keep in mind the many permanent residents of the parks, who are long time members of the community and who have found the uncertainty and the behaviour of some park opponents particularly difficult.
• The Trust remains committed to working with the Council and the community in good faith.  We ask all involved to do the same, so that we can deliver better parks for all concerned.

Encroachment guarantee 

Echonetdaily received confirmation from both NSWCHPT CEO Steve Edmonds and Council’s legal services co-ordinator Ralph James that there is legal certainty that the NSWCHPT won’t be able encroach on the proposed 10m setbacks.

NSWCHPT CEO Steve Edmonds told Echonetdaily, ‘In terms of setbacks we are required to achieve three metres from the river top of bank. We are proposing 10m instead.’

‘If the 10m gets exhibited and adopted this will then become legally binding on the Trust. The risk for Council and the community disappears. It will be the POM not the Regulation that makes them binding as the Regulation only ever requires three metres except where the boundary is a road. Yes we would manage these foreshores (right to the waterline) as they are still in the gazetted Reserves and not on Council Land.’

Meanwhile Mr James said the setbacks detailed within the Plan of Management would be binding as it as the same effect as a development consent.

He said, ‘A Plan of Management under section 114 Crown Lands Act 1989 has the equivalent status to that of a Development Consent under the Environmental Planning and assessment Act for the use as Caravan Parks and camping grounds.’

‘A section 68 Approval to Operate is a lesser development standard to that of the Crown Lands Act. A section 68 Approval to Operate relates to the uses of the park at the time of the application.

‘The three Holiday Parks were operated on Crown Reserves by Council for more than 60 years.

‘Over this time the land occupied expanded outside the boundaries of the Crown Reserves into road reserves and into other Crown Reserve areas.

‘In 2007, when the Byron Shire Holiday Parks Reserve Trust became the operator of the three Holiday Parks, there were significant existing deviations from both the land tiles occupied for the Holiday Parks and camping grounds, and the specific layout of the parks in respect of the Regulations,’ he said.

Questions to Council’s legal services manager, Ralph James

Meeting procedure

Question: Cr Ndiaye also she claims that once a rescission motion is lodged it cannot be withdrawn and must give a directive, ie it cannot be simply a delay. Is that correct? She is basically saying that owing to NCHP’s telling council the previous motion by Cr Coorey (Resolution No. 17-120) is a ‘deemed refusal,’ then she was forced to act and has no choice. That seems odd to me but anyway that’s what I understood her to say. For example, this rescission motion defers “consideration of the Revised Concept Plan for Terrace Reserve Holiday Park.”
Is there any requirement for Cr Ndiaye to follow through with this rescission motion?

Mr James replied, ‘A motion, once it has been placed on the agenda, cannot be withdrawn. However a motion cannot be debated unless there is a mover and a seconder.’

Legal advice

Question: Cr Ndiaye also sent through responses from Steve Edmonds to Patricia Warren over the parks. It appears Mr Edmonds simply has a differing opinion to Ms Warren, ie it is not clear whether it underpinned with any legal advice. Does Mr James consider the arguments by Mr Edmonds to be more legally sound than Ms Warren’s? What likelihood would council have winning such a case if NCHP took it to the L&E court over not complying with its request for approval and the validity of the 2014 Plans of Management (POM)?

Mr James replied, ‘Mr Edmonds statements as to the historical development of the governing legislation are accurate. Legal Services makes no comment as to Mr Edmonds application of facts or circumstances to the applicable governing legislation. In the event of proceedings being launched in the Land and Environment Court where Council is named as a party, Council would take legal advice based on the nature of that action and the matters pleaded. Council would be guided by that advice which would include an advice as to merits.’

Further questions to Cr Ndiaye:

Timing of future development 

Question: This rescission motion – in part 3b – appears to commit Council to the timing of future development applications by NSWCHTP. Surely council should not be bound to their timelines – that appears unnecessary. Why include it? Was it a demand from NSWCHTP?

She replied, ‘To the contrary. I asked that we reduce the timeframe and this is one of the details worked on with staff. Previous approvals have been for a five year period and issues raised in the past by the community is that there hasn’t been a strict enough timeframe set by council. This way the Trust needs to undertake any works required within that period to make Holiday Parks compliant under the the 2005. This will give the Trust the opportunity to demonstrate that it is serious about doing what it has committed to, and prior to any further applications. A shorter period of say 12 months would have been too short to achieve the outcome.  I believe the Trust were involved in working out the timeframe and committed to meeting it. This is not a DA which would sit under the Local Government Act 1993. It’s a PoM under the Crown Lands Act 1989. It is not committing Council to anything but rather committing the Trust to get it done, according to the Legislation and within a time frame.’

Echonetdaily additionally asked Cr Ndiaye, ‘Who helped you author this or is this all your own work? ie was there assistance from the mayor, staff, NSWCHTP?’

She replied, ‘I initially wrote a draft, met with staff, discussed options that would achieve the best outcome and they came back with wording (I’m sure would have consulted with NCHP but you’d have to ask them) and I again made adjustments.’

‘We than had a meeting with all councillors and NCHP and we discussed variations on the design for the Terrace and given there it was clear there was still room for improvement on the design and more information required about the trees, we adjusted the the final wording to allow for further negotiation.

Also Echonetdaily asked, ‘Does this rescission motion have any deals attached? Was there promises exchanged between council and the state government for allowing the contentious boundaries to be subsumed within these POMs?’

Cr Ndiaye replied, ‘No, there are no deals attached or promises made. These variations of PoM allow for less for NCHP than the current PoM and more obligation on their part to provide setbacks and community facilities so I don’t think we’re in a position to ask for anything in exchange.’