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Byron Shire
August 16, 2022

Council staff to proceed with ‘error’ in zoning label debacle

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Hans Lovejoy

A lack of clarity surrounds a major label change to a zoning, which, according to former Greens mayor and NSW MLC Jan Barham, is a huge advantage to the owners/developers of 111 ha of pristine and rare littoral rainforest between Broken Head and Lennox Head.

Bound by nature reserves and a Marine National Park, Linnaeus Estate has been the focus of many court challenges and community activism over the years.

Ms Barham says the land had been ‘zoned for Special Use – Education, since the 1980s. Every approval has been for Private Education Facility’.

Director Sustainable Environment and Economy, Shannon Burt, claims the Department of Planning, Industry and Environment (DPIE) instructed her department to change the zone label to ‘mixed use’, via email on 27/05/16, despite a DPIE spokesperson telling The Echo, ‘The department did not direct the Council to change the zone label’.

One of the owners of the Linnaeus Estate, Brandon Saul, told The Echo that the property is collectively owned by 15 or so parties, who ‘agree that a mixed use zone is not an appropriate zone for the site’.

He told The Echo, ‘Neither Council, the original developers, or the current owners sought a rezoning’. Mr Saul believes the issue arose with trying to apply the SP1 Special Activities zone to the statewide LEP template.

Mr Saul says the landowners agreed that the Community Title (CT) process, currently underway, should be put on hold, ‘so that everything can be tidied up in one go, providing certainty to all involved’.

‘They’re actively working with Council to have a more appropriate zone implemented, and they have no intention of utilising the current zone to dramatically change the nature of the development onsite. The proposal that is currently under consideration is a very modest eco/health retreat that would actually reduce the built form currently approved, and it is not tied to either the zoning issues, or the CT process’.

Environmental protections

Mr Saul also outlined the environmental protections that the current owners have applied to the site, ‘to have all the ecologically sensitive habitat on the site protected in perpetuity’.

Despite the lack of clarity around who is responsible for the zoning label change, Ms Barham is pursuing a formal complaint of maladministration, owing to the ‘lack of transparency and accountability’.

Ms Barham placed a full page Echo ad on October 21, claiming planning staff failed to put a rezoning label before councillors or the public. Staff refute this however, claiming that the change was advertised, albeit buried within a housekeeping amendment.

She says Council staff’s response to her complaint ‘imposed legal professional confidentiality’, and says she is dissatisfied with the response. The complaint will now be taken to the Minister for Planning, ‘with the support of Ballina MP, Tamara Smith’. 

Ms Barham says, ‘As Council have justified the zone label change by stating they were instructed by the Department of Planning, it’s necessary to seek a response from the state government regarding their response to rectifying mistakes, or if a windfall for developers is accepted, regardless of the lack of community awareness and due process’.

The claim that the decision is an advantage to developers is denied by staff.

She told The Echo, ‘A report to Council in May indicated that a new proposal for the site would be reported to Council, but instead, last week, a report to Council included embedding the “error” that allows Community Title (CT), and concealed it in another LEP housekeeping amendment’.

Ms Barham says she made a submission to Council, but this was ignored. ‘I will now prepare a formal submission when exhibited’.

Ms Barham said, ‘We can no longer rely on the fact that what councillors vote on for public exhibition is what will be delivered. Meaning, the community can no longer have confidence that the elected Council are fully informed of the outcomes’.

Ms Barham says there is no comprehensive report that identifies ‘how such a fundamental mistake was made’.

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