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Byron Shire
June 29, 2022

Senior Counsel says Byron Council acted illegally

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Photo www.linnaeus.com.au

Recent advice from Tim Robertson, one of Australia’s most senior environmental barristers, is that Byron Council acted illegally when it zoned part of Linnaeus Estate for mixed use development.

Established in 1996, Linnaeus Estate is a 111 hectare gated community located on rare littoral rainforest adjoining the beach between Broken Head and Lennox Head. It is bounded by the Broken Head Nature Reserves and the Cape Byron Marine National Park and contains abundant wildlife, including threatened species.

Senior Counsel (SC) Robertson’s Memorandum of Advice concludes that an application to develop eco-tourism facilities on Linnaeus is prohibited and not permissible.

According to the advice provided to The Echo, he finds that even if it were permissible, it is nonetheless illegal for either Byron Shire Council or the Northern Regional Planning Panel (NRPP) to grant consent to the application.

He further finds that the planning instruments which zoned part of Linnaeus Estate for mixed use were not validly made.

This is the latest in an ongoing dispute between residents and the prospective property developer Brandon Saul, who represents wealthy landowners pushing to construct an exclusive tourist resort, restaurant and bar, a wellness spa, parking lot, and more than 30 exclusive cabins, treehouses and other buildings on the property.

According to the DA, the proposal includes the destruction of Nationally Critically Endangered Littoral Rainforest to make way for buildings.

The project is opposed by many Byron residents, along with the major shareholder of Linnaeus Estate, who commissioned the study by SC Robertson.

In his 40 page document, SC Robertson says, ‘The eco-tourism proposal is not for the purpose of education. It is for tourism with an educational “experience” as a fringe benefit’.

No BDAR report

He notes that the law requires development applications to be accompanied by a Biodiversity Assessment Report (BDAR) if the proposed development is likely to significantly affect threatened species or ecosystems. 

Robertson SC contends the consent authority has no power to grant consent in its absence. He concludes: ‘….[if] the proposed development is likely to significantly affect threatened species, then the consent authority has no power to grant consent. No BDAR has been prepared and no concurrence has been given’.

SC Robertson also finds that the ‘Sustainability management plan’ in the development application contains no measures to remove threats of serious environmental damage, to maintain habitats, or to monitor and review the effects of the proposed development on the natural environment.

There is no undertaking to prepare a vegetation management plan for the site as a whole. Such a plan should already lie before the consent authority.

Robertson finds the DA’s proposals ‘too inchoate’, or rudimentary, to meet some of the stringent tests required by law.

Claims by SC Robertson were put to Council staff, who replied in part that ‘Council has obtained legal advice, which is privileged’.

They added the independent long-awaited review of the Linnaeus audit report had been delayed owing to ‘consultant availability and ongoing COVID-19 restrictions’.


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