Council staff have yet to answer whether they have applied a crucial planning policy to their recommendations around rural tourism development applications (DAs).
Such an omission could open Council up for litigation around such DA approvals.
Questions around the quality of planning staff reports were raised by keen Council watcher Matthew ‘Cleva’ O’Reilly during Council’s public access on May 23.
O’Reilly asked if planning staff have been directed to implement a March decision by the Land & Environment Court (Ardill Payne & Partners v Byron Shire Council  NSWLEC 1125) in relation to ‘all tourism development applications (especially rural cabins) and large development applications in rural zones’.
After a lengthy explanation of the issue, Council’s senior planner Shannon Burt replied that a review of the rural tourist accommodation policy is underway.
Rural Settlement Strategy
According to O’Reilly, since 2016 staff have not required all the prescriptive requirements, and guidelines under the Byron Rural Settlement Strategy 1998 (BRSS) have not been applied to tourist cabins DAs.
He said, ‘As a consequence, tourist cabins have been approved by Council without following the requirements of the development control plan (DCP) and consequently the BRSS’.
O’Reilly said, ‘A search of the [online] DA tracker shows that Byron Council has never approved more than six rural tourism cabins on a single property’.
‘The only two DAs to exceed six cabins were the one just outside Mullum, which applied for 12 cabins and 150 campsites, and the current Montecollum Rd [Wilsons Creek] DA, which is seeking eight’.
That recently lodged Wilsons Creek rural tourist accommodation DA, comprising eight cabins and associated works, is opposed by all surrounding neighbours.
The Echo previously reported that a representative of the neighbours was critical at staff’s recommendation for approval at a recent planning meeting, claiming many breaches of Council policy.
While the decision has been deferred, Greens mayor Simon Richardson appeared generally supportive of the DA at the meeting.
O’Reilly told The Echo, ‘Councillors were notified of the [Ardill Payne] court win, but I do not think they were properly informed of the commissioner’s reasoning and why Council won.
‘I also do not think they have been properly informed of the consequences, otherwise they would never have accepted the staff report recommending approval for eight tourist cabins in Wilsons Creek when the Byron Rural Settlement Strategy 1998 (BRSS) clearly only allows six cabins per property’.
The Echo asked Cr Cate Coorey whether she felt adequately informed of the Ardil Payne court case, where Commissioner Walsh dismissed a case by the property owner of 541 Friday Hut Road, Possum Creek.
The property had unapproved dwellings and was seeking approval for six cabins.
The overall objective of the Byron Rural Settlement Strategy 1998 (BRSS), as discussed in the court case, was to promote visitor appreciation of the distinctive setting and, through the injection of tourism-related spending, further diversify the economic base of the area.
According to the court determination, tourist and visitor cabins can be built on rural land if they meet the objectives for development in RU1 and RU2 zones, such as ‘to enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality’.
Cr Coorey replied, ‘It can be difficult as a councillor to work out the interrelationship between the many planning documents with which we have to work; the guidance of staff is so important in this.’
‘We get monthly memos on legal activities, but mostly they contain unremarkable, routine matters.
‘While Council often has matters in the Land & Environment Court, a judgment such as this one on the tourist cabins is significant and should be brought to bear in both planning staff and councillors’ decision making.’
Regarding the quality of planning reports, she replied, ‘Sometimes I feel there is a lack of consistency in planning decisions; I’m not sure why. As councillors we only see a fraction of the DAs that are submitted, so we don’t have input on every single one. Anecdotally, I get a a lot of feedback from people who don’t understand how staff make planning decisions and who are also very frustrated by the often long process’.
‘It would be a good thing, I believe, to find a way whereby clarity on DA decision making could be improved for Council’s customers and the progress and activity of individual DAs could be better explained to them.
‘Planning is a very imperfect system – that is a matter for the state government – but there is definitely scope to make it a better experience for the average person who has to work with that system.’
Council’s director Sustainable Environment and Economy Shannon Burt told The Echo, ‘Staff are preparing a report to the June meeting of Council to provide further information to Council in response to a number of questions raised about rural tourism – holiday cabin development’.
‘This follows on from a Notice of Motion No. 9.1 Consider removal of ‘Rural Cabin’ provisions and amendment to ‘Farm Stay’ provisions in Rural Zones included in the Ordinary Meeting 18 April 2019, but withdrawn on the day, and the recent Land and Environment determination’.