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December 6, 2023

Byron GM responds to criticism of planning staff

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Byron Shire Council GM Mark Arnold. Photo Jeff Dawson

Byron Shire Council’s general manager Mark Arnold has refuted claims against his staff made by a Council observer and journalist for the BayFM radio show, Community Newsroom.

The criticisms were previously printed in The Echo’s letters section,  and Mr Arnold’s full reply is available on Council’s website.

The following is a shortened version, and Beatson’s response will be published next week.

Claim: Byron Shire Council failed to have its Council representative attend the Joint Regional Planning Panel to determine DA 2016NTH020 DA – Ewingsdale Hospital.

The Council representatives as resolved by Council at the time of the Joint Regional Planning Panel meeting for the hospital DA were Cr Basil Cameron and David Milledge.

Under the Panel Operations Procedure and Code of Conduct set out by the Joint Regional Planning Panel, Cr Cameron had a conflict of interest. The Byron DCP 2014 was amended by Council in February 2018 to specifically account for the development. Council’s meeting minutes from Thursday February 22, 2018 records the change to the DCP (Report No. 13.14) and also listed Councillor Cameron as having been in attendance at that meeting.

David Milledge, the other Council representative, was away and unable to attend the meeting.

Under the Panel Operations Procedure and Code of Conduct – a council nominates members and  advises the Joint Regional Planning Panel (JRPP) of who they are.

The JRPP contacts these members directly about their ability or not to sit on the Panel for a meeting.

Should these members not be able to sit, the alternative members (if any nominated) are asked to sit by the JRPP. If no members can sit, then the three state members are the panel.

Council has updated its membership of the JRPP with Vanessa Ekins and Katie Milne as its nominees on the JRPP when it considers the West Byron DAs. David Brown is a Byron Shire Council nominee and Joe Vescio is an alternative. Councillor Basil Cameron is another alternative.

Claim: The staff report to the Joint Regional Planning Panel for DA recommended approval for a four-storey development.

The mixed-use development (2017NTH025 DA) was determined by the JRPP on November 14, 2018 and was refused. The (final) development assessment was undertaken by staff on the basis that the council had considered that the land zoned B2 Local Centre and on the eastern site of Jonson Street was suitable for a maximum height of 11.5 metres and that FSR controls would be removed across Byron Bay Town Centre, subject to Gateway determination (Council meeting of 20 September 2018, Report No.13.9).

This follows an earlier resolution of Council to undertake preliminary (pre-Gateway) community engagement to discuss planning controls under review in response to the Masterplan. Council in considering the report, resolved to increase the building height on the southeastern side of Jonson Street from nine metres to 11.5 metres and to remove the maximum FSR in Byron Bay Town Centre where land is zoned B2 Local Centre.

In this regard, it is important to understand that the elected council and Council staff have distinctly different roles in the handling of DAs. Section 352 of the Local Government Act 1993 (LG Act) provides for the independence of Council staff in the preparation of advice and recommendations. The LG Act provides that a member of staff is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the staff member. Equally, a council or councillor is not bound by the advice or recommendation made by a member of staff. The same applies to the joint regional planning panel when acting as the determining authority for development applications.

Staff have acted in accordance with a resolution of Council for the purposes of their assessment of the development application. Staff otherwise complied with Council and Panel procedures as they are required to do.

Claim: That staff accepted late applications from developers for two West Byron Development Applications leading to the development applications being deferred.

Under the Environmental Planning and Assessment regulations, an applicant can apply to amend a development application at any time up to its determination (but only with the agreement of the consent authority). In this instance, the consent authority was the Joint Regional Planning Panel. The JRPP was advised by Council staff of receipt of the amended plans (late) for the R&D site DA, and that staff would not be able to assess these prior to the panel meeting. The JRPP secretariat advised staff to proceed with an addendum report on these amended plans for consideration of the panel at the scheduled meeting.

Council staff have complied with the panel operations procedures in all respects. It is/was ultimately a decision for the panel chair as to whether or not a meeting date is confirmed, and or deferred based on the advice provided by Council staff.

Claim: That staff told councillors in late October they could not have an assessment of the development application to the Joint Regional Planning Panel before the Land and Environment Court in February, but now due to councillors will report to February.

To clarify, there are two separate development applications being considered for West Byron; each is at a different point in the assessment process. This claim confuses the two development applications.

They are: 2018NTH007 DA: Subdivision of six lots into 387 lots consisting of 378 residential lots, two business lots, two industrial lots, one recreation lot and four residue lots.

And 2017NTH013 DA: Staged development application for subdivision of land stage one – subdivision of nine lots into 290 residential lots in nine sub-stages, stage two – concept plan for residual land including medium-density residential, low-density residential, commercial, industrial, recreational and environmental management precincts.

The 2018NTH007 DA has recently been deferred by the JRPP pending a further assessment by Council staff on amended plans. It is also set down for a Land and Environment Court conciliation conference on February 12, 2019.

2017NTH013 DA is under assessment by Council staff, and is not anticipated to be reported to the Joint Regional Planning Panel until 2019.

Regarding the timing of the assessment of the R&D site DA:

Staff are now undertaking a review of the amended plans submitted to the development application lodged. This review has been scheduled to be completed to meet the JRPP meeting deadline for a meeting February 4, 2019. The Land and Environment Court (LEC) S34 conference is scheduled February 12, 2019. As per LEC practice notes, amended plans from the applicant may be submitted up to and during the LEC process. However, should the DA be refused by the Joint Regional Planning Panel prior to the S34 Conference, legislation allows the appeal process to continue.

Regarding the timing of the assessment of the Villaworld DA: Owing to current work commitments, including the R&D Site DA, some of Council’s experts involved in the review of the Villaworld subdivision DA are unlikely to have their assessment of the DA including new information recently provided until the beginning of the new year. Consequently, the JRPP consideration of the application will need to be held over until 2019.

Claim: Council staff proposal for West Byron rezoning fails on several accounts as presented by speakers at the November 22 meeting of Council.

It is important to clarify the context and requirements for staff in preparing the report for the November 22 meeting.

Council considered an urgency motion at its ordinary meeting October 18, 2018.

The zone application review provided recommended zones and objectives for those recommended zones it did not prescribe any specific details on controls for the land under those proposed zones. Controls can be applied differently across the Shire to locations/sites or parcel of land.

This zone application review was not a planning proposal, or final local environmental planning instrument. This work is yet to be done as was discussed at the meeting on November 22, 2018.

Staff are now progressing the most recent resolution of Council with respect to this matter, which includes reference to where appropriate design parameters as shared during the public access.

This work will assess what is an appropriate level of development for the site and assign planning controls accordingly.

Claim: Staff appear to act against the direction of councillors… I expect a public apology and even sackings… such incompetency must not continue.

I appreciate fully the passion, commitment, and divergent views of the Byron Shire community to planning and development matters, and that this can often lead to differences of opinion during the development assessment process and subsequent to a decision.

Notwithstanding the above, it remains an obligation on staff to ensure development decisions are made lawfully and fairly for all parties involved.

In addition, staff must ensure the efficient and effective operation of Council and implement decisions of Council without delay.

As general manager, I have full confidence in the planning staff and the work they do. I see no evidence that staff have acted inappropriately, without competence or professionalism.

As such, I will not be taking further action.

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