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Byron Shire
February 3, 2023

Byron Councillor wins court case against Council

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Byron Shire Councillor Alan Hunter. Photo Hans Lovejoy
Byron Shire Councillor Alan Hunter. Photo Hans Lovejoy

Councillor Alan Hunter has won a court case against the very council he was elected to, perhaps ending a protracted battle with his neighbours over his desire to operate a self-storage facility at the end of a short rural road in Myocum. 

The DA (development application) for three farm buildings and 12 self-storage units as self-storage premises was previously rejected by Council; the units were relocated from a ‘road transport terminal,’ which was initially approved in the previous Council term.  

Council had refused the recent application owing to traffic and parking, effluent disposal, flooding, character and zone objectives, insufficient and inadequate information, precedent and public interest. 

After the National Party-aligned councillor failed to reach a conciliation with general manager Ken Gainger, he challenged the decision in the Land and Environment court. 

Hunter v Byron Shire Council [2017] NSWLEC 1495 was decided on September 8 by Commissioner Graham Brown.

Affected resident Rebecca Chaffer told The Echo that the lesson learned ‘is that the whole process is pretty much geared to supporting developers. The next time I buy a home it will be in a residential area to ensure my amenity.’

She added, ‘Although we are happy that the approval is subject to conditions that will improve the safety of the road and ensure the business only operates during the week.’

No basis to refuse

Expert reports were presented to the court in the areas of flooding, town planning and traffic, with the conclusion that ‘there was no basis to refuse the application from their respective areas of expertise.’

Yet Council’s legal representative A Seton submitted to the court that notwithstanding the agreement of the experts, ‘the court should refuse the application on the basis of the evidence of the residents who live along Pinegroves Road and their observations of the operation of the approved trucking depot.’ 

‘A number of residents provided evidence to the court and their concerns could be summarised as: numerous breaches of conditions of consent restricting hours and days of operation, unauthorised use of farm sheds for storage purposes, poor road alignment and grades, amenity impacts from cars/trucks using the steep access, unsuitability of the site for a storage facility, renters of the storage units will likely want to access on weekends, and additional traffic dangerous for local koala population.’

Commissioner Brown said that if a development is consistent with its zoning, that should be given weight in order to give effect to a council’s planning instruments, and past breaches of consent were not relevant.

The concerns of residents did not persuade the Commissioner.

He said, ‘On those matters raised by the residents, I am not satisfied that there is sufficient reason to refuse the application based on these concerns and the evidence of the experts who prepared reports for the hearing and also the submissions of… the applicant.’

Commissioner Brown also said the proposed development will benefit from a plan of management (POM), ‘and while I accept that the council enforcement of the conditions of consent may be problematic at times based on the evidence from the residents, the uncertainty in the enforcement of conditions of consent is not a reason to refuse the application.’

Traffic okay

Traffic matters raised by the residents were dismissed as the judge said both Council’s representatives and the applicant agreed that ‘the traffic surveys were valid in relation to the survey period and duration…’ It’s expected that the proposed development will ‘generate approximately eight vehicles per day and there is sufficient parking provided.’

As for any potential impacts on the shire’s vulnerable koala population, Justice Brown was satisfied with a council report from December 2016 that said, ‘the development will not directly impact on koalas. Indirect impacts would be associated with additional traffic movement on the local network. As indicated above, the traffic generated by the use of the shed as self-storage will be less than that generated by a new dwelling’. 

When it came to whether the proposal was suitable for the zoning, Commissioner Brown wrote that ‘planning decisions must generally reflect an assumption that, in some form, development that is consistent with the zoning will be permitted.’

‘In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site.’

To pursue the expansion of his storage business, Cr Hunter will be required to provide detailed engineering plans of the proposed upgraded roadworks (road widening), including ‘pavement works, line marking, sign-posting, relocation works and any associated ancillary works…’

Commissioner Brown accepted that the road alignment and ‘any impacts from cars/trucks using the steep access have been satisfactorily addressed and there are no traffic reasons why the application should be refused.’

While there is no requirement for monitoring truck movements, Justice Brown ruled that the applicant, ‘is to keep a weekly record of the number of trucks using the storage facility to be produced to Byron Shire Council at request.’ 

‘The number of trucks using the storage facility may be electronically recorded and any data captured must be kept for a minimum period of four weeks.’

Council have also been asked to undertake vegetation clearing works on Tyagarah Road ‘to assist in providing improved sight distance…’

Cr Hunter was asked whether he intends to proceed with his self-storage plans but no reply was provided by deadline.

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  1. It is only right and fair that the entrepreneurial spirit of the Councillor has been rewarded by Commissioner Brown. We must applaud the can-do baby boomer spirit of the Councillor. It’s a continuation of the 19th century go-ahead ten bob an acre land selector that’s recently given Byron Bay paid parking, the under-construction CBD shopping center, as well as the soon to be bulldozed swimming pool and subsequent Gold Coast architecture. Surely soon the genius of the settler society will build a wall around Belongil beach. The exiting thing about the approved storage facility is that future shipping/storage containers may be piled high and converted into backpacker accommodation with bunk beds. This would bring zest and economic activity to a dull rural cul de sac. Perhaps the twelve-story high dry ski run and winter sports training area that Lennox Head residents recently knocked back could also be added to the Development Application?

  2. There were no reasonable grounds for refusal of this DA. It went to Councillors for a determination, and politics prevailed over rational application of the law and the advice of the experts. This is clearly demonstrated by the fact that at trial, Council’s own appointed expert agreed with Councillor Hunter’s that there were no grounds for refusal! And who paid for this little political escapade? The silent rate payers of course. When staff hours are added to the cost of our external Solicitor, Barrister and planning experts the total cost will certainly be in the order of $100,000! Back to the bad old days when the far-left Councillors and their cohorts happily blow our rates on fruitless and pointless political games.


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