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Byron Shire
January 27, 2022

Court settlement in long-running Bruns park dispute

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Hans Lovejoy

After years of dispute around camping close to an endangered tree community at the Terrace Holiday Park in Brunswick Heads, a settlement has been reached in the Land & Environment Court.

The NSW Government-run holiday parks corporation, Reflections, instigated proceedings against Byron Shire Council, accusing them of a ‘deemed refusal’ to operate their commercial activity via a Plan of Management (PoM) in the southern section of the camping ground.

Car parked close to one of the protected Coastal Coastal Cyprus pines located at the Brunswick Heads Terrace Holiday Park today, May 24. Photo Aslan Shand.

Community members, along wth Council, have consistently raised concerns over poor management by Reflections of a Coastal Cypress Pine Forest (CCPF) community, located within the park. They are considered an endangered ecological community (EEC), and are afforded protection under the NSW Biodiversity Conservation Act 2016.

The judgment is available at www.caselaw.nsw.gov.au for NSW Crown Holiday Parks Land Manager trading as Reflections Holiday Parks Terrace Reserve v Byron Shire Council (No 2) [2021] NSWLEC 51.

Foreshore Protection Group convenor, Michele Grant, says the result is a ‘win-win’. 

She says, ‘7,500m2 was saved for rehabilitation and replanting, and Reflections gets to keep 26 camp sites, instead of the proposed 45 sites’.

Despite the optimism, Ms Grant says, ‘Reflections refused to release the site layout plan and the vegetation management plan (VMP) for public access. ‘No-one outside the court “experts” has yet seen the documents!’

She adds, ‘Reflections was not disqualified or penalised for past poor performance, but can no longer claim exemptions, and must comply with the new rules’.

Meanwhile, resident Sean O’Meara accused Council staff of making other concessions behind closed doors, which have ‘undermined 15 years of discussions’. 

Similar concerns were raised by resident Patricia Warren, who asked ‘How did setbacks even get into the hearing, when the community members and documents to the Court were expressly and directly, on advice from Council, focusing on the environmental factors?’ 

Additionally, she says ‘Legislation requires a 10m [foreshore] setback [from camping areas], so why was less agreed to by Council?’

The Echo asked Council staff why ecologist Rob Kooyman was not contacted, and whether his report was used as evidence. 

Council’s legal counsel Ralph James replied his report was included as evidence, and attempts to contact Mr Kooyman ‘were unsuccessful’. 

This is despite Mr Kooyman’s contact being clearly marked on his report to Council. Mr Kooyman told The Echo he was not contacted by Council regarding this court case. 

Mr James said, ‘We were on a timetable allocated by the court and our failed attempts to contact Rob, had they continued, would have frustrated our ability to comply with the court’s timetable’.

‘It was an important consideration for Council and its legal team that the ecologist was not seen as having previously been involved with any party (including any community group) other than Council in relation to the site and the approval application’. 

Mr James added, ‘The expert engaged, Damian McCann, who is relatively local, knew the area and had experience in the relevant matters, was determined as the most suitable…’

Behind closed doors

The judgment by Justice Nicola Pain focuses on Reflections’ Vegetation Management Plan (VMP), which is contained within in its Plan of Management (PoM). While that VMP is now over ten years old, Justice Pain accepted a ‘substantially refined’ VMP, which was proposed ‘in the course of the hearing’.

Justice Nicola Pain writes in her judgment, ‘I consider that the VMP… with further modification as set out below, if implemented, can achieve substantial improvement of the CCPF EEC with the aim being to restore all components of the EEC in the southern precinct’.

Justice Pain writes this includes: ‘Exclusion of areas to be planted or allowed to regenerate from human activity by fencing, no mowing in the areas to be restored and protection of root zones are achievable measures’. 

‘Active involvement of an ecologist, which has been lacking in on-the-ground management decisions made by the applicant to date, is incorporated in the VMP K2. Records of the survival rate of trees planted will be kept, an improvement on the existing situation where none is kept’. 

Compliance auditing will also be reported to Council.

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