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Byron Shire
October 23, 2021

Byron Shire Mayor, staff mute over Council court loss

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Hans Lovejoy

Byron Mayor, Simon Richardson (Greens), is again remaining mute over questions around Council’s court loss, this time over a fencing dispute in Suffolk Park.

Similarly, staff are yet to reply to questions around the court loss, and whether they plan to strengthen the LEP to ensure clarity around residential amenity. 

It comes after Council lost in court against a developer over the consolidation of three large lots in Ocean Shores, despite a large, unanimous neighbourhood opposition and sensitive environmental issues. 

Development Control Order overturned

Napoli v Byron Shire Council [2020] NSWLEC 1646 was handed down on December 15, 2020, and was a result of the landowner taking Council to court after staff imposed a Development Control Order over a high fence being erected.

In summarising her judgment, Acting Commissioner, Sue Morris, said that Council’s order should be revoked, given that the structure was not inconsistent with the development consent. She said that ‘Council did not provide any evidence’ to the contrary [regarding] claims by the property owner’.

Independent Cr Basil Cameron told The Echo, the court’s decision ‘can be characterised as turning on administrative issues rather than planning principles.’

Cr Cameron said, ‘Acting Commissioner Morris stated that she understood “the concerns of the objectors regarding height, scale and bulk”, however her “role in this appeal is not to assess the merits of the structure”.’

Cr Cameron continued, ‘Council can not change the regulations, but it can adapt to the changes in the regulations that occurred between the original consent and the issuing of a Construction Certificate’.

‘An understanding of current law and evidentiary requirements needs to be applied when deciding whether to issue a Development Control Order’.

Meanwhile, Matthew O’Reilly, who is standing for Council in September, told The Echo, ‘My understanding of this L&EC proceeding is that it was not really the fault of the compliance staff’. 

‘It was the fault of the development approval (DA) staff, as they approved a DA with vague conditions of consent that were open to interpretation by the private certifiers.

‘This is just another case where DA approvals are not handled properly.

‘Conditions of consent and stamped plans need to be tight and not open to interpretation. This happens far too often.

‘If DA conditions of consent were handled better then compliance staff would have a much easier job enforcing compliance’.

Duncan Dey, who is also running for Council later this year, told The Echo, ‘Privacy and fence heights are huge issues in the urban landscape, and are now creeping out into the rural landscape as well.

‘There is no doubt a fence with “effective height 3.5m” will impact on neighbour’s amenity. That should have been addressed when the fence was (or wasn’t) approved. The issues are articulated well by the neighbours in point 16 in the case report. As usual, the objectors are on top of the matter.

‘I have not seen the site, but I can’t understand how fundamentals like the 900mm setback and not attaching the 3.5m high screen to the 1.8m boundary fence got ignored by the court.

‘The private certifier argues at point 27: “The posts have been bolted into the timber fence which gives added structural integrity to both the fence and the screen but particularly the fence”. 

‘This is simply wrong and should have been challenged. The shared timber boundary fence will be a nightmare to replace, when one day necessary’.

Mr Dey continued, ‘What a pity. The neighbours get done over, yet again. Because the development process is deeply flawed in favour of building new stuff, Council should take more care along the way: if the extreme height fence had never been approved, the court case would not have happened’.


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