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February 26, 2021

Council critic ‘targeted’ by compliance staff

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A long-time resident – and Council critic – is accusing Council staff of unfairly targetting him for having a caravan at his home, which he says is legal.

Matthew Hartley, a former independent political candidate, supplied The Echo with correspondence around a compliance inspection at his Byron Bay home and details that led to it.   

A November 10, 2020 letter for an inspection was sent to Mr Hartley owing to ‘alleged unauthorised development’ shortly after he raised concerns around a neighbouring property. 

Yet Mr Hartley says Council’s claims of unauthorised development – an outdoor spa which had not been installed – could only have been taken from details from his approved DA.

Mr Hartley’s statements around these events were put to staff and not refuted. 

Combing property

After Council staff found no unauthorised development regarding a spa, Mr Hartley says they began combing his property and identified a caravan which they claimed was unauthorised development.

Mr Hartley was then slapped with a ‘Show Cause’ letter, which asked if there were any reasons why Council shouldn’t pursue the alleged unauthorised development.

After Mr Hartley disputed the caravan’s illegality by presenting staff with case law around its use, they apparently withdrew their threats. 

Yet Council’s in-house solicitor, Ralph James, wrote again on January 27, 2021 to Mr Hartley saying he had ‘further considered the matter’. 

Mr James argued that the caravan was not a ‘portable device’ as it ‘could not be registered, and the person inhabiting the structure was apparently not a part of the land owner’s family’. 

But Mr Hartley told The Echo, ‘According to the legislation, the occupant need not be a blood relative, but rather a “member of the owner’s household”.’ 

‘A change to the legislation was made years ago to include extended family and long-term friendships. Council is fully aware of this, because they told me all about it before I built the caravan’.

Legal tit-for-tat

Additionally, the November 10 inspection letter advises that as a result of their inspection, ‘Council may recover the reasonable costs of that entry and inspection’.

Mr Hartley says he was charged $180 for the inspection, and has replied in kind by sending back a bill for his time – $700. 

According to correspondence supplied, Council’s legal advisor Ralph James asked Mr Hartley for evidence that his bill came from a qualified lawyer, ‘and therefore entitled to provide legal services and render invoices for those services’. In another reply, Public & Environmental Services Manager, Sarah Nagel, wrote, ‘Council does not intend to pay the “bill” that you have included in your correspondence’.

Compliance fees of $180 per hour for self-invited compliance visits were announced by Council staff late last year after they targeted Main Arm residents, accusing them of unauthorised development.

The Echo asked Tweed Shire Council if they charge property owners for self-invited compliance inspections, and a spokesperson replied they didn’t.

Crusade backed by procedures, polices

The crusade against Mr Hartley highlights the issue of Council’s accountability around compliance actions against individuals and subsequent complaints around staff behaviour. 

Council compliance staff have the powers to inspect any property, with notice, under the state’s Local Government Act 1993 (LGA) and Environment Planning & Assessment Act 1979 (EP&A).

Charging landowners for inspections by investigation officers is defined under section 197 of the LGA and in section 9.29 of the EP&A.

Throughout Council’s Policy Enforcement 2020 Policy, the focus appears to be around ‘unauthorised activities that may inflict serious harm to the environment or public health and safety’ (page 27).

It’s unclear how a caravan, even if unapproved, can be considered to fit that criteria.

Mr Harltey made a code of conduct complaint, which was replied to again by Council’s Mr James, yet the complaint was not addressed.

Ms Nagel, on the other hand, invited Mr Hartley to supply details to Council of the ‘wilful neglect of duty or wilful misconduct, by a public officer that amounts to an abuse of the public trust’. 

She also suggested contacting the Minister of Local Government, The NSW Ombudsman and The Office of Local Government if dissatisfied with Council staff conduct.

The Echo put questions to Council staff around how this case aligns with its enforcement policy, whether it was in good faith and creates ‘collective good and welfare of the community?’ (Section 4.4 of Policy Enforcement 2020).

Council staff replied that procedure was followed after an independent review was undertaken.

Mr Hartley says he is now preparing for a court case against Council and says, ‘Council virtually begged me to install the wooden caravan owing to a housing crisis’.

‘All was done as per instructions’. 

The Echo also asked Council staff, ‘How is it in good faith to charge residents hundreds of dollars for an inspection, given they did not invite Council onto their property?’

‘Council’s Policy Enforcement 2020 policy (page 15), illustrates the low and high ‘significance of unauthorised activity’. Do staff agree this case is of ‘low’ significance for unauthorised activity? If so, why is this issue being pursued?’ 

Council staff replied that procedure was followed after an independent review was undertaken.

They said, ‘Council received a complaint from a community member in relation to an alleged unapproved dwelling located on Mr Hartley’s property’.

‘Council has an obligation to investigate such complaints. Council staff followed procedure, issuing an inspection notice and undertaking a compliance inspection.

‘During the inspection, unauthorised development was identified and correspondence was sent to the property owner allowing him an opportunity to respond to the matter.

‘In instances where Council investigates a complaint that is determined to be unfounded, no inspection fee is charged.

‘Council’s legal services team undertook an independent review of handling of this matter by our Enforcement Team. The review concluded that actions taken to date have been legitimate and in accordance with Council’s endorsed policies and procedures’.

Meanwhile, Mr Hartley says he is preparing for his day in court. 

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