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Byron Shire
November 28, 2021

Illegal development: it’s better to ask forgiveness than permission

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Opinion

Readers may be interested in a letter I’ve sent to the Registrar of the Land and Environment Court in relation to what I see as an abuse of local process by Council. The subject matter is the way Council quietly deals with illegal development:

In the early 90s ICAC made some findings in relation to north coast councils that certain arrangements were ‘conducive to corruption’. This term was discontinued after the extremist pro-development lobby loudly complained – as they always do about ICAC.

I draw your attention to a situation in Byron Shire that seems to be classically conducive. I do not claim or imply that there is actual corruption, only that certain steps in favour of developers allow the possibility of ‘mates rates’.

Locally there has been an explosion of illegal development by people who have the financial means to do it by the book but who choose not to.

When neighbours formally complain, or the owners try to sell their property, they are suddenly faced with seeking retrospective approval.

Large amounts of money are at stake, so there is motivation aplently to game the system and call in some favours.

Through acquaintances I have learned of three local instances that illustrate the problem. In one case Council issued a demolition order and a $1m fine – later withdrawn.

In another, Council issued a stopwork order and demanded the owner lodge a development application. In the third matter I’ve been unable to get Council to muster much interest; illegal work continues on the property.

All hunky-dory

This inconsistent approach reflects the fact that all of the relevant decisions are being made behind closed doors by compliance staff. There is zero involvement by our elected councillors, who do not have a clue what’s going on and prefer to pretend that everything’s hunky-dory.

As nothing ever appears in the Council agenda there is no open debate, meaning nil transparency or accountability. Only the immediate neighbours have any idea that there’s even a problem. How conducive is that?

I now refer in more detail to one of the matters raised above. The landowner ceased work as directed and lodged a DA as directed. Council, however, rejected the DA because it was so low on detail that consent was unjustified (the onus is on the applicant to demonstrate compliance with relevant planning law).

The owner then lodged an appeal with the Land & Environment Court. This got tricky when the owner was granted court permission to add certain design specifications and explanations and to have the appeal decided on that new information.

The owner in my opinion abused that concession by changing the entire proposal. This should have caused Council to demand a new DA but instead they merely put the changes up for further public comment. This is of course procedurally to the owners’ advantage.

Of equal concern is the question of how many public submissions were lodged. The staff report said six, Council’s Ralph James told me seven, Marsdens said ten but the locals’ estimate is 14. Clearly the owner (or his project) is not popular, but reducing the number of registered objectors is to his favour.

Bushfire risk

However, my main concern is the bushfire risk. Having recently had to jump through bushfire hoops myself, I don’t see why Council even processed his application when the owners had not lodged an expert report from a bushfire consultant – not even a dodgy one.

This proposal is called an ‘integrated development’, meaning that Council and the Rural Fire Service (RFS) have separate and independent inputs regarding their separate areas of responsibility.

The development cannot be finally approved unless both parties concur. Without an expert report upon which to base their assessment the RFS, however, seems to have cracked it and sulked off.

My legal point is this: in this kind of appeal a Commissioner of the Court stands in the place of Council and the RFS but as the owner has not named the RFS as a respondent party so how can the Court go ahead and make a decision about the fire risk? Especially if there is no expert input for the commissioner to base his decision upon?

For its own part the RFS is on record as stating that it does not wish to be a party to the proceedings.

A local planning consultant hired by one of the objectors has stated that most aspects of the development cannot possibly meet fire- protection standards, so the RFS position seems to be a total abdication of responsibility, a willingness to allow the court to possibly blunder into a dangerous situation by approving that which simply cannot by rights be approved


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3 COMMENTS

  1. Without my feet landing or touching the ground I sped off a registered letter to the Registrar of the Land and Environment Court in relation to what I see and feel within my active mind an alleged abuse of local process by this here Byron Council. The subject matter without from what I can see is any counselling from anyone or legal Council surely is not the way this raucous and rowdy Council quietly deals with what seems to be illegal development.

  2. Fast Bucks, not so fast, have you thought that snail mail in the mail when you want to nail something and hammer it, it is not so fast these days?

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