Byron Bay’s new solar train could be stopped in its tracks within six months if a local residents’ action group wins an upcoming court challenge over an alleged breach of environmental zoning rules.
The Belongil Action Group Association (BAGA), most of whose members live near the train’s 3km route, commenced proceedings against the Byron Bay Railroad Company in the Land and Environment Court on December 15.
In addition to launching the action, BAGA sought an immediate injunction against the Railroad Company which, if successful, would have forced the train to stop running just days after its grand opening on December 16.
However, at a hearing on December 20 chief judge Brian Preston dismissed the injunction application, finding that it would have caused injury to the Railroad Company.
Nevertheless, chief judge Preston found that there was a ‘serious question to be tried’ at a hearing in relation to the matter.
While a two-day hearing is planned in May, the owners of the multimillion-dollar train operation say it will continue to run.
In a statement to The Echo, a spokesperson for the Byron Bay Railroad Company said, ‘We have all relevant approvals and so will fight this claim.’
Meanwhile the president of BAGA, John Johnston, said the group’s members looked forward to their day in court.
‘Chief Judge Preston determined in his judgment that there are substantive issues in this matter, [which] should be considered by the court.
‘He suggested a hearing be expedited,’ Mr Johnson said.
Environmental zoning
According to court documents obtained by The Echo, BAGA’s case against the train revolves around a small railway bridge that crosses Belongil Creek.
The group argues that, unlike the rest of the 3km track, this section is covered by the W1 Natural Waterways zoning for Belongil Creek under the 2014 Byron Local Environment Plan (LEP).
The zoning was put in place by Byron Shire Council some years ago to protect the Belongil Creek ecosystem and some of its recreational uses.
Under this zoning, BAGA says, the land cannot be used as a railway and thus the solar train is operating in breach of the law.
The Railroad Company disagrees, arguing that the bridge over the creek was used as a railway line in the past and remained in use as a rail line even after the 2004 closure of the Murwillumbah line by virtue of the fact that maintenance and repairs were conducted there.
This means that the solar train is part of an ‘existing use’ of the Belongil Creek bridge and so the W1 zoning does not apply to its operation.
The Land and Environment Court’s finding in relation to this argument is likely to determine the solar train’s fate.
Solar train service
The solar train service runs between the North Beach precinct, which includes the Byron arts estate and Sunrise Beach community, and the newly constructed station behind Simmo’s garage.
The Railroad Company is a not-for-profit organisation created by the owners of Elements of Byron, and they have spent millions retrofitting an old two-carriage train with solar panels and rebuilding the 3km stretch of track.
During the December 20 court hearing, Byron Railroad Company’s director of development, Jeremy Holmes, gave evidence about the financial impact on the company if the train were forced to stop running for a period of time.
Mr Holmes said the company would lose $3,500 in revenue per day or about $116,258 per month.
The operation required at least 250,000 single trips a year to remain financially viable, Mr Holmes said.
Prejudice
Chief Judge Preston found that, based on this and other evidence, an injunction would cause prejudice to the respondent.
BAGA have long objected to the operation of the train.
In addition to their environmental zoning claims, the association says the operation is in breach of the Shire’s coastal erosion policy, and that the train has an unfair impact on the residents whose homes lie along the 3km route.
The latter two of these claims are not part of the court action. The matter will return to court for a directions hearing on February 23.
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