The question has been raised by the peak body that represents progress associations and other community groups across the shire after they were informed that the council is pursuing court costs from Butler Street residents over their bypass challenge.
The residents recently lost their case against council over the validity to construct a bypass past their homes and associated works.
Community Alliance for Byron Shire (CABS) president Matthew O’Reilly says his group is questioning what impact such an action ‘will have on other community organisations [and their] willingness to stand up for issues that are in the public interest.’
O’Reilly said, ‘We understand that Council wants to avoid frivolous and vexatious legal challenges to its operations and planning decisions, but whether pursuing a community group who have no assets for costs best serves this purpose is unclear.’
Echonetdaily asked the mayor is he supported the pursuit of this legal action against Butler Street residents.
He replied, ‘Currently council has requested only half of the legal costs and there has since been a counter offer. I support accepting the counter offer and moving on. Obviously, council has a responsibility to ensure it can recover legal costs from vexatious lawsuits, however, council has in the past waived costs from legal proceedings brought about by community organisations.’
Meanwhile Councillor Paul Spooner told Echonetdaily there was no briefing from staff on the matter and he is unsure of where proceedings were at.
‘We are on recess at the moment’, he said. ‘Though, I’d be very cautious of going down the path of litigation against community groups and would suggest it is not in our best interests.’
Asked if he is concerned that staff were undertaking the decision to pursue legals costs without councillor approval, he said he couldn’t comment owing to not knowing more details.
Butler Street Community Network’s Paul Jones told Echonetdaily that there has been no reply from council’s legal services regarding their counter offer. ‘Failing [any reply], we are in court Wednesday July 19,’ he said.
‘It certainly was not a vexatious lawsuit; it was an essential legal case which was supported by considerable legal minds.’
‘We have no intention to be annoying – we are seriously pursuing truth and justice.’
Councillors should assess legal actions
O’Reilly says, ‘A better course of action would be for councillors themselves to assess whether the legal action brought by the community group meets the principles of being in the Public Interest as outlined just last year in Ocean Shores Community Association Inc v Byron Shire Council (No 5) 2016. This costly recovery action will either result in a similar decision as the Ocean Shores case or the winding up of a well-known Byron community organisation.’
‘Should other community organisations in Byron Shire fear the same fate if they challenge a decision of this council? Whether we agree on the intentions and motivations of the Butler Street Community incorporated is irrelevant. What we should be able to agree on is that their proceedings in opposition to the Butler Street bypass has shed light on significant issues that serve the public interest.
‘Had the Butler Street proceedings never been undertaken, then council would have never become aware of their development rights under the Infrastructure SEPP.
‘The proceedings have also provided clarity on whether developments that comprise areas requiring consent and areas not requiring consent should be assessed for their cumulative impacts.
‘Other community groups in Byron Shire have obtained valuable insights into the use of the Infrastructure SEPP by the council to avoid public scrutiny of some of its development projects. For example, the council appears to be using the same process to implement vegetation removal activities at Tyagarah Airfield. It appears to be staging its developments so that it undertakes the SEPP Infrastructure permitted development first without public scrutiny before then applying for a Development Application over the remaining sensitive environment areas when most of the works have already been completed. It appears that the council has learnt its lesson from the Butler Street legal proceedings and is now keeping many of its activities in the dark away from public scrutiny under the Infrastructure SEPP.
‘We call on councillors to take a common-sense approach to the issue of recovering costs from community groups who have failed in their legal actions. The result will either be you crush dissenting voices in the community or you end up paying even more to the lawyers in Sydney (more than likely it will be both). We also call on the council to use its rights under the Infrastructure SEPP judiciously and publicly exhibit all Reviews of Environmental Factors under Part 5 of the Environment Planning and Assessment Act whether you are required to by law or not. Such a motion by councillors would show support for the principles of the Community Charter for Good Planning in New South Wales which this council has agreed to follow.’
Note: This article was updated to delete the reference to SLAPP, or a strategic lawsuit against public participation.