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Byron Shire
October 23, 2021

Byron Council investigates The Pocket Road earthworks as runoff fills Marshalls Creek

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The cleared site on Google Maps.

Aslan Shand

Driving up The Pocket Road from Billinudgel, the veil of green is suddenly ripped aside as you see what appears to be a hillside cleared back to bare earth. The first thought is – ‘disaster coming at next rain’.

Actually, it was a disaster many rains ago, and continues to be, according to neighbours in the area. On 17 August, 2019 a road was carved into the hillside with a significant number of trees and other material pushed into part of the watercourse, say locals.

After one of the landowners Max Lacopetta (who was on Grand Designs in relation to a property in Wategos that sold at a loss in 2013) was called by neighbours, there were attempts to remove the material ‘but there was still a lot of mud, rocks and debris left in the waterway and gully’ said one neighbour who asked not to be named.

The development application (DA), granted in 2017, was for upgrading an existing road and for work on the culvert crossing Marshalls Creek that is located in the upper reaches of the waterway. 

When they started work on the culvert in 2019 they ‘put in a 90mm PVC pipe under the culvert – that is still there’ and the crossing site is still covered in rock, mud, and debris, according to neighbours.

‘There is no way that could satisfy or comply with the fisheries department regulations in relation to the flow for fish for example,’ said Deputy Mayor of Byron Shire Council, Michael Lyon, who is also a resident of The Pocket.

Sediment controls appear to have been inadequate at the site. Photo supplied.

Inadequate sediment controls

Byron Council planning staff were contacted with an anonymous complaint following these initial works.

Further work clearing the hillside began in early February 2020. With news reports of a big storm on the way, neighbours said they were surprised that the bulldozers were continuing their work rather than the site having sediment controls put in place.

‘As far as I understand it, if they put any in, it was too little too late,’ said one neighbour.

Mr Lacopetta apparently responded at this stage to locals’ concerns, saying that he would ‘reinstate the creek’.

‘The entire hillside went into the creek,’ said another neighbour, who also asked not to be named.

This decimated years of regeneration work that had been done downstream of the site, according to locals who told The Echo that the creek had a range of native fish, prawns, platypus, eels, vegetation, and clear water, prior to the work on the site.

‘It is now filled with red soil from the hillside,’ pointed out one of the neighbours.

Left: Following wet weather the creek downstream of the site filled with red soil that locals believe washed into the creek following the earthworks. Photo supplied.

Alerts to authorities

The Echo has been told that multiple neighbours contacted the landowners and tried to anonymously alert Council, including people going and talking to Council staff about the environmental impact of the work throughout the process.

According to a Council spokesperson, This development was approved and a construction certificate issued by a private certifier.  The certifier is responsible for ensuring the development complies with the conditions of consent. Council is currently reviewing this matter with reference to compliance with the development consent.

A formal complaint was also made to Natural Resource Access Regulator – Land and Water Division, on 13 February, 2020. However, it appears that after three months they referred it back to Council to investigate, and Council then informed the complainant that, ‘The Principal Certifying Authority, being East Coast Building Consultants, is responsible for ensuring that works are carried out in accordance with the development consent and Construction Certificate.’

Previous approaches by neighbours to East Coast Building Consultants over the work at the site had elicited statements from the private certifier that they were doing works according to the DA.

What was approved?

The Notice of Determination is the only document relating to the DA on Council’s DA tracker on its website. Therefore, there are no documents for the public to compare the work that has been carried out to what was approved.

Deputy Mayor, Michael Lyon initially applied to access some documents in late October 2020, including sediment control plans, vegetation plans and the table of trees via the freedom of information (FOI) process. However, he was told by Council staff that while staff could view those documents,  ‘community members can’t FOI documents like the construction certificate because they went through a private certifier’. Subsequently Cr Lyon has viewed some of the documentation in his role as councillor.

Work appeared to have stopped at the site for the three months prior to October and Councillor Lyon told The Echo that, ‘Council has been aware of the issues on this site for some time following several complaints over the last two years. It is complicated by the fact that the original approval for a construction certificate was done by a private certifier (PCA), therefore initial compliance queries needed to be directed to them for resolution.

‘Now that work has stopped on the site with several outstanding issues we are moving forward with compliance action. The next step is to issue a prevention notice under the Protection of the Environment Operations Act (POEO) which will require the landowner to install adequate sediment and erosion controls where identified as lacking.’

Subsequent to The Echo contacting landowner Mr Lacopetta, metal fencing has been installed in the driveway and work has again commenced at the site.  Council has been informed that the work will be completed in approximately eight weeks.

Landowners to pay for remediation?

‘If we have sufficient evidence we may also lodge an action for polluting a waterway under the EPA. Subsequent to Council staff inspection of the site they said that it is clear that sediment control is inadequate and that the topsoil has been washed away,’ said Councillor Lyon.

‘Following this I will be pushing for us to issue orders, under the EPA,[for the landowners] to comply with the conditions of consent, most importantly the vegetation management plan. If the landowner is unwilling to comply with this, then we may have to do the work ourselves and then charge this to the landowner. Ultimately, I will be pushing that we force the landowner to pay for remediation, and if they are unwilling, to force the sale of the property to pay for it.

‘The system that state government has introduced that allows the use of PCAs is lacking and can cause horror shows like this scar that has been created on the landscape. The PCA in this case was, and is, responsible for the site and we will be following up and reporting them to the appropriate authority.’

Cr Lyon said the particular circumstances had broader implications at a time when cashed-up city residents were driving up the local hinterland property market.  ‘It is disappointing when people come to our Shire and think they can treat it like a plaything for their grandiose dreams without any reference to our community or the environment,’ he said. If there was sufficient evidence, he continued, ‘I will be ensuring we prosecute this matter in the fullest manner possible.’

♦ The Echo put the allegations in this article to both Mr Lacopetta and the PCA (East Coast Building Consultants) prior to publication, but both declined to make any comment whatsoever.

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  1. Get it together Council,

    Commence class 4 proceedings n get an injunction and stop this vandalism,

    Omg of course they’re breaching their consent and causing pollution and significant environmental impact,

    If Council wants advice give us a call similarly distressed residents

  2. As a neighbour, I find it an absolutely disgusting. Actually I am at a loss for any wording to describe how I feel. We have endured constant earthworks and the impact on the rejuvenation of the area has been set back decades. Why was this not followed closely by council especially given the amount of complaints logged. with them? It beggers belief. I do hope they receive the full weight of the law with this abhorrent display of vandalism.


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