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Byron Shire
February 26, 2021

Belongil residents take on Railroad Company

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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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25 COMMENTS

  1. well , best of luck. but dont bet the house on it! the train tracks never stopped being a rail corridor and nsw govt will trump council rules on that, i will bet on it. i personally think the train is great! and it it really good to see it back in use! the tracks were always there beofre Sunrise was and nobody who bought there can argue that they didnt consider this risk at some point before they bought!

  2. Nimby’s on steroids , owning land near a railway track and then complaining about a train using it .
    I wonder if they would spend money fighting the XPT in the unlikely event it ( or something similar ) was reintroduced .
    The track has been there for possibly close to 100 years and I’ll wager there is no evidence it has any relationship to any erosion of the local beach .

  3. The whole issue of the Train to Elements shows the best and worst of the Byron culture.
    It’s good to see local residents active together using their own resources to protect community interests and uphold the proper use and implementation of LEP’s and council planning laws . The introduction of a Solar powered tourist train although I was a skeptic actually having seen it run if it was properly managed for what it is a joy ride and resort connection it’s on balance probably a positive and unlikely to damage the eco system and badly inconvenience residents. Certainly probably less harmful to the community than the West Byron development also covered in this edition of the echo and also an example of ignoring planning rules and community expectation. That’s the good side, the bad side of Byron is the ineptitude of the council to respect or up hold its own environmental and planning laws, the total failure to think through what a sensible operating framework looks like and a community consultation process designed to confuse and deceive rather than consult,understand and execute against a well thought through community expectation. A hostile group of residents who very probably will completely stop the train versus a developer and wealthy miner who through weight of cash hopes he can change the rules on planning , inconvenience and disrupt affected residents and businesses , move Festivals , markets and events from main Byron out to benefit a resort .
    A sensible approach with respect for our planning laws, affected residents and businesses, the quiet enjoyment and preservation of our environment and proper use of the service could have resulted in a service appropriate to the need ( I have seen the service run several times and it only ever seems to have about 15 people on it) without disrupting the community.
    As it is having read the judgment which I would recommend I expect the train will stop, their will be endless bad blood and court appeals and yet again we will make a total mockery of our planning laws and their implementation—- all had huge emotional and monetary cost
    A further chipping away at what has sustained Byron Bay and made it one of the most desirable places in Australia to be.
    Please sit down and work this out sensibly and Council do your job.

  4. Can’t believe the muppets are actually pursuing this. This train is one of the best things that happened to Byron. Classic nimby mentality…

  5. Like every other town in NSW, Byron needs public transport. It would be absolutely unthinkable if this group was successful and the train was stopped. Let’s hope the court finds against this group and ensures that they wear every cent of costs and damages they have caused the train company and community to wear.

  6. Step One: Come on holidays and appreciate the area as it is.
    Step Two: Sell Sydney/Melbourne property – then time for SeaChange!
    Step Three: Upload social media photos #YOLO
    Step Four: Buy property next to train track/venue/beach/road etc.
    Step Five: Join community group that goes against wider communities needs/wishes (note: not a conservation outlet – instead a “XXXXX Residents of XXXX Community Group”)
    Step Six: Begin class action against council/neighbour/bar etc.
    Step Seven: Moan that you didn’t move up here to listen to trains/cars/music or that you deserve a rockwall or no nieghbours, poor people, elderly, vulnerable etc.
    Step Eight: Tell previous residents that it is not your fault there is no affordable housing, besides nobody ever helped you and if you can’t afford to live here then bugger off elsewhere.
    Step Nine: Go to yoga and drink Chai
    Step Ten: Enjoy your vapid sterile town, you’re now the new Byronian and you have the Instagram photos to prove it!

    • Dynamic , couldn’t have said it better myself .
      I’ll wager half the people who are objecting to the train only have the houses as investments anyway .

  7. The rail lobby have been hoisted on their own petard with their boasting that the Elements train sets a precedent for public transport along the line. The so called NIMBYs who are objecting are not idiots. The operators of the current service are quite clear that it technically cannot be used for more than a short distance without recharging and have no intention of extending it. So the eight a day commute service that NRRAG pushes for, would mean a noisy diesel passing homes near the line every hour, and more if an XPT or freight services were added as well. People near the line have enjoyed a peaceful location for more than a decade and they never had to put up with sixteen or more noisy diesels a day.

    This push will help remind people along the length of the line of the noise and diesel pollution of commuter rail. It reminds us too of the disruption to traffic that closing level crossings like Lawson Street each hour would have. I suspect though it will not succeed. If it does, that will be a shame for Byron Bay and all those individuals who have put some much work into the Elements train, but the blame will lie firmly with those who cannot accept the Elements train for what it is but see it as a foot in the door for what would be expensive highly subsidised noisy polluting commuter rail services.

    • So Peter ,
      All the people who live in Newcastle , Sydney and Wollongong and the myriad of other towns
      that have railway lines adjacent to residential areas should also object to noisy polluting diesel trains also ?
      Spare a thought for all those people living near Strathfield station who have to put up with noisy polluting diesels at least every ten minutes .
      What about the people of Mailtland who put up with mile long diesel hauled coal trains every 15 minutes ?
      Oh wait , its only the residents of Belongil who deserve peace & quiet and tranquility , right ?

    • OMG!! ‘Noisy polluting commuter rail services’!!

      Of course the nimbies and bikers would much prefer roads and towns choked with noisy, polluting cars and trucks, poisoning the air we breath and destroying the environment and community amenity local people have fought for decades to preserve!

      BRILLIANT!

      It’s been a train line for 123 years and had (huge diesel) trains running on it for 110 years. Peoples’ lives, health and the environment are more at risk from road transport than a tiny solar train or a regular commuter train service.

      • Louise – I am not trying to justify the NIMBY point of view. The Elements train is very pleasant and quiet to ride and passing by – no one could seriously object to it near their homes. My point is that if you and others exampling this as a portend for future rail has given people a reason to object to rail in principle. If this great tourists service is stopped I will have no hesitation in blaming the hubris of some rail supporters.

      • Louise I will separately address – as is my want – the specific errors in your comment. Can I first note that we are called “cyclists” – “biker” is American English. Of course we do want not the roads chocked with cars or trucks. However some of us have read the detailed analysis in the corridor study that found that a commuter service on the rail line would have little impact on car usage and so little positive benefit to the environment. The latter conclusion was also the NSW environment departmental advice given to the 2004 Legislative Council Inquiry, and the department was further unable to conclude a commuter train would have a lesser environmental impact per passenger. That advice is supported by Sydney transport economist Lenzen who found rail was only more energy efficient compared with road transport at peak hours in large cities.
        Most people recognise a commuter rail would have no impact on interstate freight which is the bulk of what passes through our area. And why would freight operators want to transfer freight brought to Casino by rail to a commuter train and then transfer it again to tricks or vans for local distribution; in the case of the Bay that would lead just add to a traffic congestion and point of use pollution around the railway station.
        You have never provided any evidence to support your continuing contention that people’s lives are more at risk by rail compared with road-based transport. Certainly rail is safer than private car use, but statistics of mortality and morbidity show in countries like ours with well regulated public transport, all public transport modes are very safe including buses (air is the safest). Your repeated denigration of alternatives to rail are both unevidenced and unconvincing.

  8. Boo to the Belongil reactionaries. I live in small country town in Victoria where we have a tourist railway and it’s well regarded. I love sound of the claxon as it passes. Get a grip people and grow up…

  9. Bugger off BAGA. Snobby noses. Where are these ppl mentality. This train is the best thing to happen to Byron Bay in many years. It is also eco friendly. The government should step in and squash this stupid court case. What a waste of money. When toot wins this case they should counter sue the members of BAGA to recuperate there losses.

  10. OK, so let me get this right… Byron Bay’s ‘Solar Train’, runs a few token kms to a resort owned by a coal magnate and is financed by the some of the dirtiest mining deals our state has ever seen. Am I missing something else here?

    http://www.smh.com.au/technology/sci-tech/byron-bay-to-get-worlds-first-solarpowered-train-courtesy-of-a-coal-baron-20170702-gx31yo.html

    http://www.smh.com.au/nsw/why-one-of-nations-richest-men-gave-a-reference-for-jailed-exminister-ian-macdonald-20170601-gwimvl.html

  11. An interesting story. Elements of Byron Bay form a not for profit company to run the train because they know it can’t operate at a profit (By their own admissions it needs 250,000 paid trips per year to do so and therefore needs to average 76 passengers every trip). Quite a big ask.

    The FREE publicity it has gained from its proposal & subsequent objections is where its actual benefits for Elements lie

    There was an equally vociferous campaign against the more environmentally sustainable proposals for rail trails in the area where those opponents lauded the arrival of the train in restoring rail to the area.

    Great to see the NIMBY’s hard at work on every proposal put forward

    • Expensive, taxpayer funded rail trails to be used by a few cyclists are NOT public transport and do not reduce traffic congestion or toxic emissions.

      • Lousie, you are the only person I have read suggesting rail trials represent public transport. They are a private transport-that for most people can provide an alternative to public transport or cars for up to 10 – 20 km. The large numbers of people who use rail trails is clearly elsewhere outlined in the study for our rail trail – the estimate here is many tens of thousands. Like most users of the Elements train most rail trailers will be tourists taking the journey for its own sake and so the cycling trip will not displace a car trip. However you would expect near towns – especially in the Bay – it will be used for a significant number of transport trips instead of cars and of course each of those trips reduces congestion and generates zero pollution. At the Northern Rivers Rail Trail stand at Lismore Square markets yesterday I was struck by the large number of positive inquirers in general and the marked number of those who had a bike but rarely cycled because they do not like cycling on the road with cars. I suspect there will be a large number of locals as well as tourists using the rail trail around he Bay if the Byron Council wakes up the fact that cycles are – and have always been – the most sustainable form of transport and starts supporting the rail trail. .

  12. Another issue with the train is the Kendall street crossing.You are getting tourists that have little knowledge that despite the signs the need to stop and look.Watching the elderly and parents pushing prams across the near middle of the track, as there is no paved pathway is an utter disgrace.You can afford a train, you can afford to pave that roadway on one side.Not a cost to the council but the train owner.The Railway rude letter have left many local residents with feelings of anger.How do you expect them to get to the beach, but to cross the train tracks?Not everybody has ther own resort.You fine them Railroad Company you will angry even more residents.

    • Marlene ,
      These rail crossing scenarios are commonplace in the world ,
      often with no signs at all but relying on people using their commonsense to stay alert .
      Ignore warning signs and then get injured ?
      That’s called Darwin’s selective evolution of the species .

      • Chris These crossings are indeed commonplace, particularity in the third world and they result in fatal accidents – including the sad death of a women in Kyogle last July. We did not reduce our death toll on the roads by simply telling people to be alert, we did it by putting in place safer infrastructure, including by removing uncontrolled level crossings in busy areas. I am surprised the Byron Shire did not consider this when the Elements train was proposed and it certainly should consider it in its Byron Line study. As it stands a safe situation has been made less safe for road users in order to provide a tourist ride, and a additional petrol is being used as motorists are required to stop .

  13. The train does not cross Shirley Street and traffic is not required to stop. The new station built by Elements is on the beach side of the road.

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