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Dear resident,

This guide is aimed at providing helpful information to consider should you be facing a large-scale inappropriate development application (DA) in your neighbourhood. It attempts to explain Council’s procedures and policies around the DA process, as well as options you have should you be denied fairness in the process and determination.

It could be a proposal that massively increases the density of dwellings on your street, or could be a proposal next door that aims to attract visitors to an event site. The massive increase in Byron Shire real estate value, keen developer interest and lack of available homes in this region have led to these types of development applications being lodged.

This guide was written by Echo editor Hans Lovejoy in March 2019 after his personal experiences with such DAs.

This information should not be considered legal advice.

Determining authority for DAs
Council’s first obligation with DAs
Get the neighbourhood involved
DAs are reports within a report
Councillor interest in planning
Writing a submission against a DA
Tips for how to follow the DA process
DA approvals
Land & Environment court
Legal hierarchy
Code of conduct complaints
Office of Local Government complaint
NSW Ombudsman complaint

Consent authorities for DAs

In most cases, Council are the determining authority for DAs. DAs lodged that are valued at over $20m are decided by NSW Planning Panels (formerly the JRPP). Specialist health facilities such as the Ewingsdale medical centre have a lower threshold ($8m) for going to the panels. The Planning Panel members are appointed by the state government across NSW and have an almost 100 per cent approval rate on DAs they determine. The Northern Regional Planning Panel for this region is headed by a former National Party MP Garry West. The issue of course with these panels is that they are unelected; in the case of the northern region, the panel is led by a former Nationals politician and these panels do not necessarily reflect the wishes of the community.

There is no oversight with these panels except the code of conduct they are required to adhere to.

The major parties (NSW Labor and the Coalition) favour Planning Panels because they bypass the wishes of Byron residents to be in control of large-scale developments and planning in the Shire.  The majority of NSW residents are either unaware of this issue or are in favour of large scale development at any cost.

See www.planningpanels.nsw.gov.au for more info.

Council’s first obligation with DAs 

When a DA is lodged with Council, staff’s first obligation is to advise neighbours of the application, and advertise it with a few lines in a newspaper. The extent of notification and the level of advertising vary with the scale of the development. Currently, The Echo carries Council notices for DAs.

Hard copies of DAs used to be available in the Council foyer in Mullumbimby but they are now only online.  Following complaints, Council is trialling a new system of accessing DAs on its website.

There is no certainty that all affected neighbours will be notified by letter of a DA. This means notification is arbitrary and ranges from no notification at all, to just those properties adjoining the Lot with the DA, or occasionally the whole street. It appears the size of the proposal has no particular bearing on how many are notified.

Regardless, if those immediately affected neighbours are absent or aren’t bothered, the DA proposal moves quickly. Two weeks’ public notice is the standard timeframe, unless you request and receive an extension.

Make the request in writing to staff immediately. Email [email protected] or write to PO Box 219 Mullumbimby NSW 2482.

If staff grant an extension for public exhibition, four weeks appears to be total time given to write your submission. Yet when you consider that the developer has paid experts who have prepared theirs over months in secret, it does appear unfair and inequitable.

Staff are required to assess and determine a DA within 40 days (a legislated requirement by the state government), unless information is missing (eg a technical report). Then the clock stops while the report is submitted by the developer

There is some good news regarding Council staff and developer obligations for large DAs. Submissions closed on March 27, 2019 for amendments to the DCPs which are primarily to:

  • increase the level of public exhibition and notification that development applications require
  • introduce a pre-lodgement community consultation measure for development regarded as community significant.

The changes include:

Community significant developments have been defined as a building with a gross floor area of 5,000m2 or more in a residential, rural or commercial zone; or any development that will be referred under the Act to the Joint Regional Planning Panel; or any subdivision resulting in 50 lots or more; or residential flat buildings or multi dwelling housing resulting in 10 or more dwellings; or any development that proposes demolition of a heritage listed item; or pubs; or small bars (nightclubs) function centres; or restaurants in rural areas; or offensive industries; or telecommunications facility.
Surrounding Landowner means a landowner up to 500m from the application site. Adjoining landowner means the land which abuts an application site or is separated from it only by a road, lane, pathway, right of way, river or stream or similar thoroughfare.

Get the neighbourhood involved 

Assuming you are faced with an inappropriate proposal, everyone in the surrounding area needs to be letterbox dropped with the DA info and signatures and contacts collated. Call a meeting, draft and share submissions, ask who knows a town planner and associated experts such as engineers. Lobby councillors.

Numbers matter, and the more residents that are involved, the better. Remember – time is ticking and it is limited. After you have formed a group, it’s important to find out from staff whether the DA will be determined by staff or councillors. It may be in your interest to have councillors determine it, not staff.

Council has a Planning Review Committee (PRC). All Councillors have the right to attend the Committee’s meetings but only three are required for it to make decisions. The public are not able to attend. The PRC looks at DAs if a Councillor puts them on the Committee’s agenda. PRC determines whether the DA will go to Council or be determined by staff under “delegated authority”.  That authority does not extend to big DAs – those with a value over about $10m automatically go to Council for determination. That value is reset from time to time by councillors.

DAs are reports within a report

Developers often lodge large, inappropriate DAs with Council that do not necessarily meet community expectations, especially for the not-so-computer savvy elderly.

These DAs are often unnecessarily long, and as a PDF, many are unsearchable.

However, there were improvements around March 2019 with Council’s new DA Tracker.

Prior to this change, archives back to the early 2000s will generally be large bundled PDF’s. Now it appears DAs are broken up into smaller files. Prior to March 2019 there was a massive disadvantage for residents because of this, and there are many archival instances where policy was ignored.

Council’s Digital application requirements document is available online. Despite requiring that “All security settings such as password protection and editing restrictions must be disabled,” there has been archival instances before the DA tracker where it has not, and DAs were put on exhibition anyway.

Additionally, the Digital application requirements says PDFs should be “optimised for minimum size (online publishing)” and that “Files larger than 5MB must be broken up into logical parts and supplied as separate files.”

Those unfamiliar with reports such as geotechnical, statements of environmental effects, civil engineering and ecology reports, erosion and sediment control plans and stormwater management plans will feel overwhelmed. That’s why finding help immediately is so important.

This all appears unfair to non-planning expert residents and it is – NSW planning laws largely favour development at all cost, because growth is the main metric applied to measure wealth creation. NSW planning clearly puts the developer first, then the community second. Evidence of this can be seen with increased traffic and lack of parking in urban areas after a greenfield development is built. Such issues are dealt with retrospectively, with Council bearing responsibility.

Generally from a developer’s point of view, the only framework they apply is what Council will seriously consider. But that doesn’t stop them from lobbing a proposal that appears way over-scale and out of character with the surrounding area. The ‘shock and awe’ approach is intended to grab as much as possible, after which the strategy is to then concede on the scale of the DA to what will still make a profitable project.

Council have introduced a requirement for developers to engage with residents prior to DA lodgement with large DAs.

Community significant development is defined in Byron DCP 2014: Part A: Preliminary, Appendix A1 – Dictionary and Byron DCP 2010 Part A: General:

  • a building with a gross floor area of 5,000m2 or more in an industrial, rural or commercial zone; or
  • any development that will be referred under the Act to the Joint Regional Planning Panel; or
  • any subdivision resulting in 50 lots or more; or
  • residential accommodation resulting in 10 or more dwellings; or
  • any development that proposes demolition of a heritage listed item; or
    • pubs; or
    • small bars (nightclubs) ; or
    • function centres; or
    • restaurants in rural areas; or
    • offensive industries; or
    • telecommunications facility.

Also there is “Residential character narratives” being drafted, to be included into the Byron Shire Residential Strategy. These measures can help to define and protect a neighbourhood from inappropriate developments.

Presuming you are facing a totally inappropriate DA, it’s worth considering trying to get it refused outright. There should be clear grounds for that of course, and if all surrounding residents agree that it should be refused, it adds weight to the case. A DA rejection sends a clear message to developers that council will only consider appropriate DAs that meet community expectations. Such leadership can save residents a lot of angst.

Plan B is to have the DA approved with as few new buildings as possible along with as many local benefits as possible (on-site parking, fencing, reasonable setbacks, clear stormwater management, etc). Remember, the developer is aiming for an eventual compromise while trying to grab as much as they can. That’s why it’s important not to give anything away in terms of what you will agree to.

DA applicants are able to add further reports and information after the public submission process, but that is often as a response to issues raised in submissions or by councillors at their planning meeting. Objectors can also add to their submissions after the closure of public exhibition, but it appears fairly arbitrary in terms of whether staff will collate this extra material for their public submission report. Unlike the clock stopping for a developer to submit a report, the public exhibition timeframe is set unless an extension is granted.

Councillor interest in planning

The general manager (GM) bares the legal responsibility of his staff’s decisions. It should be noted that councillors have the powers to place more oversight, transparency and accountability with DAs. They could even ask staff to adhere to a “community expectation charter”, for example. So far in their term, the current councillor block (ie the majority who control the chamber with their votes) have shown little interest in planning and compliance matters. Yet they could be convinced that they should pay closer attention to these critical and basic responsibilities if they were lobbied. Remember, their political survival is at stake and they were elected to represent the interests of the community, not staff.

Writing a submission against a DA

Council have an info page here on the DA process.

A useful tip when writing a submission is to outline generally how the DA will impact you, and if you have any expert advice, it’s important to collate it in a logical order. That expert advice, off course, should demonstrate how the DA does not align with state and Council laws and policies.

Here is a list of categories, not all of which will apply to your case:

Arborist Report, Acid Sulphate Soil Investigation Report, Acoustic Report, Civil Engineering Report, Contamination Report, Cost of Development Report, Design Verification Statement (SEPP 65), Disabled Access Plan, Elevations, Erosion And Sediment Control Plan, Flora and Fauna Reports, Floor Plans, Geo-Technical Report, Heritage Impact Statement, Landscape Plan, Plan of Management, Proposed and Existing Fire Safety Measures, Shadow Diagrams, Site Plan, Site Waste Minimisation and Management Report, Statement of Environmental Effects, Stormwater Drainage Concept Plan, Subdivision Plan, Survey Plan, Traffic Report and Waste Management Plan.

Does this DA comply with council policy? Building/construction requirements are set out in both the DCP 2010 and 2014 and LEP 2014 and 1988 and it also needs to comply with NSW legislation. These are questions that can be answered by staff during the public submission period. Having independent planning advice is ideal, of course.

Collating a petition of surrounding neighbours as well as other shire residents is also recommended. As stated previously, the more objections, the better.

It should be noted that where several submissions (that raise consistent concerns) are received from the same person, they are generally treated as the one submission by staff.

Council is guided by the Department of Planning & Environment’s best practice guide in assessing and determining development applications.

Are you satisfied with how staff handled the DA which will affect you? You can include this information in your submission demonstrating how staff process was poorly carried out, for example. Even though it is not relevant to the DA determination, it’s important to record your experience with Council so that hopefully future improvements can be made.

Tips for how to follow the DA process 

1. Stay in touch with Councillors, plus keep an eye on Council agendas. These are meant to be published 9 days ahead of the meeting.  There are Planning meetings and Ordinary meetings. They occur once a month.

2. Once the DA is on an agenda, stay in touch with councillors about timing of their site visit (should there be one) and have people ready to meet them.

3. Book to speak (for or against the staff recommendation) by Wednesday noon the day before the Council meeting. Ideally engage a planner or expert to address councillors, however a well rehearsed and clear presentation from a resident can be just as good and often better. The 5-minute speech time is shared – two or three way sharing can work well.

4. Have as many neighbours as possible witness the Council meeting (unfortunately this will likely mean until after lunch).

DA approvals

If a DA has been approved where you believe process or fairness was not followed by staff or councillors, there are two options: a code of conduct complaint to the GM or launching legal proceedings against Council in the NSW land & Environment court. Only the latter could undo the approval, and then only if work has not begun on the approved DA. There needs to be very strong grounds to challenge Council’s process and conduct in the courts.

Staff have been granted a lot of ‘flexibility’ by councillors to determine DAs that have delegated authority. There are examples where this has led to residents being unfairly affected while developers have benefited.

For example, if the DA breaches height limit prescriptions in the DCP and block solar access for neighbouring properties, staff can approve it regardless of how many public submissions or petitions were submitted.

Essentially staff have the powers to ignore community wishes and favour the developer if they can prove they did so within their delegated authority.

Staff may place conditions like fencing to offset the impacts, yet there are instances where this mitigation has been inadequate.

Council has a code of conduct policy [link here] that sets the minimum requirements of conduct for council officials in carrying out their functions.

To obtain a copy of the Council Assessment Report of the DA, a request for information (a GIPA application) can be lodged with Council The fee is $30. The link is here: www.byron.nsw.gov.au/Council/Your-right-to-Council-information.

The process for a GIPA takes a few weeks so start early if you think you need a document.

Again, councillors could set clear policy which provides all affected residents with staff’s DA Assessment Report instead of having to pay for it.

Land & Environment court 

The NSW Land & Environment court is where developers, residents and Councils battle it out over DAs (and other planning related issues).

Filing an application to contest Council staff’s decision in the NSW land & Environment court costs around $5,000, and that’s before engaging a lawyer with planning expertise. Legal costs for both sides are often borne by whoever loses the case. Being cost prohibitive suits the wealthy and councils, of course.

Developers can take their DA to the NSW Land & Environment court if their DA was not determined within the legislated 40 days. This is known as a “deemed refusal”. While the developer may believe that the court will be more favourable toward their DA than a Council, a lot depends on whether the DA complies with legislation and whether there is strong neighbouring opposition. The developer is of course hoping that the Land & Environment court will approve the DA with conditions more lenient than what Council would place.

Legal hierarchy

State planning legislation is considered to take precedent over Council policies – yet strong directives from local government can determine legal outcomes.

State planning legislation and local government polices are called ‘planning instruments’.

Relevant state legislation generally taken into account for DA decisions include the NSW Environmental Planning and Assessment Act 1979 and the Local Government Act 1993.

After that, Council’s hierarchy of planning documents are, in order of importance: the Local Environment Plan (LEP), Development Control Plans (DCPs) and then settlement, residential, rural and heritage strategies. These all outline how communities wish their towns, villages and rural landscapes to be managed.  The LEP follows a state-wide template drafted by the state government.  It can be amended by Councils as long as the state government agrees. Development Control Plans (DCPs) define height plane limits and setbacks for specific areas within the Shire, for example.

Residents opposing unwanted development can argue the need for general considerations under section 4.15 of the NSW Environmental Planning and Assessment Act 1979. These include “environmental impacts on both the natural and built environments, and social and economic impacts in the locality.” The public interest, submissions must also be taken into account.

These considerations can form part of your initial objection too.

Surprisingly, a Land & Environment commissioner can sometimes still favour residents even if Council did not provide a clear intent/strategy for the area.

An angle that many councillors appear unaware of is the legal immunity afforded to Council under Section 733 of the Local Government Act 1993 (http://classic.austlii.edu.au/au/legis/nsw/consol_act/lga1993182/s733.html)

That section stipulates that if Council act in good faith, legal challenges are unlikely to succeed with cases involving ‘flood liable land, land subject to risk of bush fire and land in coastal zone’.

Just one court case that supports this claim is Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382 (Emmett and Leeming JJA, Sackville AJA).

The key here of course is to have Council defend your case – if it comes to court – rather than you as a resident. That’s what democracy is about. Councillors should be aware of their responsibilities to their constituents, and have a solid knowledge of planning law and be prepared to seek independent legal advice other from staff if required.

Councillors may want to try and ‘make a deal’ with the developer and residents while court is underway. Yet this is not ideal for residents as it may lead to such information being included in the court case. The key is to say nothing about what you are prepared to accept. The best outcome for residents is that councillors pass a notice of motion where Council confirm its commitment to defending the court case vigorously.

Code of conduct complaints

If you believe staff or councillors did not act in a professional manner in the processing of the DA that affects you, it is worth considering a code of conduct complaint.

Apart from stating the DA number and property address, a code of conduct complaint should outline the timeline of events and demonstrate how Council’s code of conduct policy was breached.

Currently the concept of fairness is described pursuant to Part 3, specifically 3.1, 3.2, 3.3, 3.4, 3.5 and 3.7.

For example, if Council staff did not acknowledge your submissions and clearly ignored them in the DA approval, you can argue they breached the Environmental Planning and Assessment Act 1979 – Section 4.15 Evaluation:

(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

…(d) any submissions made in accordance with this Act or the regulations.

Office of Local Government complaint

If you believe staff or councillors did not adequately address your complaint, you can take your complaint to the NSW Office of Local Government.

The NSW Office of Local Government says that if the the response you received from Council is incomplete or unclear, “write again to seek clarification”.

“If after receiving the council’s response, your problem remains unresolved, you may need to consider taking the issue up with your local elected councillors or the Mayor.

Their address and contact is:
Chief Executive, Local Government Office of Local Government Locked Bag 3015
Phone: 02 4428 4100
Email: [email protected]

“The Office of Local Government’s investigations role is limited. Click here for further information regarding our role.

“You may need to get your own legal advice and/or contact one of the following agencies preferably by telephone in the first instance:

NSW Ombudsman complaint

If you are unsatisfied with the reply from you complaint by the NSW Office of Local Government, you can now follow it up with the NSW Ombudsman: www.ombo.nsw.gov.au/complaints/complaint-form

It’s important that you have first followed up with Council your complaint, and if you feel it was not replied to your satisfaction (within four  weeks), you can take it to the NSW Ombudsman.

And finally – all that is described here is not legal advice. If you are faced with an inappropriate DA, you should seek independent legal advice and rally your neighbours.

All information is assumed correct at time of publication – legislation, precedent and councillors change or are updated and changed regularly.

Good luck!

For more info visit www.byron.nsw.gov.au

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