A Development Application (DA) for 33 housing lots on the upmarket Linnaeus Estate at Broken Head remains on the table despite containing fundamental legal errors, after a majority of Byron Shire councillors voted to defer the matter, rather than refusing it outright as Council planning staff recommended.
The councillors’ decision also puts them at odds with many affected neighbours, who supported staff recommendations.
In February last year, the owners of the idyllic estate applied for an amendment to Byron’s Local Environment Plan to allow for a community title development comprising 33 lots, each with a minimum size of 250 m2.
It wasn’t until after the DA had received gateway approval from the NSW planning department and completed its four-week public exhibition that Council staff realised there was a ‘fundamental error’ in the way the existing and proposed controls for the site applied in the context of its ‘Special Activities’ zoning.
According to the staff report in the agenda to last week’s Council planning meeting, this error stemmed from advice Council received from the planning department.
‘Additionally, the way in which Byron’s LEP regulates community title subdivision in the SP1 (Special Activities) zone was not fully understood when the department issued the Gateway determination’, Council staff member Steve Daniels said in the report.
‘Council has commissioned legal advice on this matter which establishes that the proposed amendment to Byron LEP 2014 is redundant.’
Housing in a coastal erosion zone?
The legal advice also revealed that part of the site earmarked for housing in the DA was in fact ‘highly likely’ to be a coastal erosion zone.
The Linnaeus Estate is located between Broken head and Lennox Head, and is some of the last littoral rainforest adjoining the coastline in NSW.
‘Permitting the creation of lots on this part of the site for the purpose of dwellings presents liability risks to Council’, Mr Daniels said, referring to the legal advice.
It was on this basis that Council staff recommended that councillors withdraw support for the planning proposal, and begin discussions with the owners of Linneaus about how to achieve their community title goals.
Yet at last Thursday’s planning meeting, a majority of councillors voted to support a motion put forward by Greens mayor Simon Richardson to defer the DA and commence discussions from this position.
‘For anyone who says that by deferring the DA and meeting with the proponents we are somehow saying that we support this, I would say – if you don’t want more things on this piece of land, the best thing is a CT [community title arrangement],’ Cr Richardson said.
‘Under the current zoning and ownership regime, all it requires for something to be built there is the agreement of the trust.
‘The clearest and easiest way to do this is a CT that clearly defines the boundaries of each lot and what can and can’t happen.
‘I also think that, given the lateness of the information that’s come through, [including] the legal advice, it would be great to work out quite clearly how we can find a way forward on this site.
‘I don’t think just saying “yes” or “no” right now is appropriate.’
Yet the mayor and his supporters were at odds with many who live in the area.
Broken Head resident Simeon Michaels spoke via online platform Zoom during Council’s public access, and told councillors that at a recent community meeting, there was ‘passionate opposition among local land owners.’
‘They want the environment protected,’ he said. ‘It’s an interconnected endangered littoral rainforest. Apart from Broken Head Reserve, all the land in this area is in private hands.’
‘There’s nothing smart or original in cashing in on the local area, which so many have worked hard to protect’.
Michaels called for councillors to stand up for the integrity of the environment and planning system and supported the staff recommendation to withdraw support.
Meanwhile, a Linnaeus Estate spokesperson told councillors (via Zoom) that they wanted to defer the DA and enter into discussions with Council.