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Byron Shire
February 25, 2021

Keep your evidence

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At last week’s council meeting I found that my booked question was not on the published list. I’ve learned from experience that when filing a document with council it’s best to get a stamped copy, so after a verbal tussle with Don’t Ask Questions Richardson I did get my way.  I’ll now explain why council staff might have lost my question.

When I lodged my submission last month with the Feds over the Bypass wetlands I focussed on a procedural question rather than the finer points of ecology, of which I am wholly ignorant.  I questioned whether the council staff had the delegated power to sign and lodge any of the documents relating to the bypass consent conditions, including Council’s recent submission re the Mitchell’s Rainforest Snail – which certainly wasn’t ratified by the elected council.  In other words that submission was the staff submission, not that of Council as such.

I argued that there was no formal instrument of delegation and that Council’s resolution of December 2017 didn’t convey any relevant delegated authority because it states only that staff should ‘implement’ the bypass, ie put it into effect, construct it.  There was nothing about the various documents that first needed to be completed in relation to the consent conditions.

I would argue, that because said resolution didn’t contain the words ‘subject to the fulfilment of consent conditions’  it was actually ultra vires, meaning that councillors had no power to authorise construction as at December 2017.

I’m quite certain, after closely following the bypass saga for years, that your elected councillors weren’t even aware that there were any consent conditions, let alone the sensitive environmental issues involved in fulfilling them.  Although that’s a staff responsibility, Cr Don’t Ask Questions simply didn’t care as long as their precious bypass was built. On the other hand, the senior staff do routinely communicate with councillors via other channels that the public don’t get to see.

My public question was therefore designed to clarify the situation:

Was any councillor able to provide evidence that he/she was aware in December 2017 that wetland destruction was involved, that an endangered species was involved, and that 30,000 cubic metres of fill would go into the swamp?

The only councillor to respond was the notoriously deaf Cr Spooner, who assured me that he had been ‘fully aware’.  When I pointed out that my question related to actual evidence, not assurances, he was quite unfazed.  Cr Spooner is a bit like Cr Richardson in that he would certainly benefit from a measure of self-doubt; it helps to keep one in touch with reality.

So, if Cr Spooner is able to demonstrate that he did know, does that let him off the hook?  Totally not; if anything, it makes his performance worse. That’s because such information should properly have been put out for public comment, which it certainly wasn’t. And therein lies a further vulnerability for Council’s legal position.

Anyone still believe that my question simply disappeared?

Keep your evidence

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