A new precedent has been set in the NSW Land and Environment Court (LEC) that could give property investors and developers a reason to rethink project designs.
It’s cost Ballina Shire ratepayers around $100,000 of the council’s budget to win the landmark case but independent councillor and Labor mayoral candidate Keith Williams says the benefits to the environment and for protecting local planning rules are priceless.
‘I actually trained as an environmental economist,’ Cr Williams told The Echo on Monday, ‘we tried to measure the environmental value of what we’re protecting by doing this stuff but it’s impossible to come up with the figure’.
Court decision proves council staff advice wrong
Ballina Shire councillors elected to take on the case against council staff advice.
But whereas certain Byron Shire Council candidates accuse staff of pursuing their own agendas and undermining elected representatives, Cr Williams chose to give the Ballina team the benefit of the doubt by emphasising how uncharted the legal waters of the local case were.
The Echo has so far been unable to contact the property owners in question, Jason and Joanne White, who last month appealed a council decision against their plans to build a new house on their rural block along Newrybar’s Old Byron Bay Road.
The block is part of a protected environmental area between one and two kilometres long on a ridgeline known as the Scenic Escarpment.
‘It’s a little bit of our 1987 local environment plan (LEP) that we’ve hung on to, because the state government won’t let us have environment zones,’ Cr Williams said.
‘So in Ballina, we actually decided that we wouldn’t adopt the new zones and we would leave a whole bunch of things as what’s called “deferred matters” in our new LEP,’ he said, ‘and so the old provisions for 1987 still apply’.
The case for letting Lantana live
The LEC hasn’t just upheld Ballina’s eighties’ environmental values, it’s effectively added to them by raising the status of non-native plants such as Lantana.
Mr and Mrs White argued work carried out on their block, which includes a rainforest gully, was minimal and mostly concerned with the removal of Lantana.
But after hearing expert environmental testimony, the LEC found certain weeds were of significant temporary benefit in native ecosystems while regeneration happened.
‘The judge found that some weed species could be recognised as early colonists’ species in rainforest regeneration,’ Cr Williams said.
‘Lantana was one of those, it would be providing fruit and habitat for species that relied on the rainforest and while the rainforest wasn’t there, they would rely on the Lantana,’ he said.
The trouble with causeways
The main concern, and the focus of the case, was a driveway the Whites had illegally built in 2016.
The driveway included a causeway across a creek, effectively blocking it in some places, Cr Williams said, and made of compressed gravel that posed a threat to water quality as it eventually eroded and leaked silt.
Cr Williams said the driveway was also a threat to the rest of the rainforest because it could change the way water flowed and was absorbed during rain.
In the neighbouring Byron Shire, the council had, in recent years, started to shift away from causeways in favour of bridges owing to adverse environmental impacts on rivers and creeks.
But in Ballina, the council was so far powerless to have the Whites remove the driveway and causeway, despite successfully prosecuting them over the unauthorised project in an earlier court case.
The property owners received fines but the court failed to give deconstruction orders, Cr Williams said.
Walking the road to destruction
Instead, the Whites lodged a development application [DA] with the council to knock down their existing roadside house in favour of a new one nestled further back in the forest.
Council staff told councillors at the time they could vote only on the matter of the house and couldn’t take the illegal driveway into account because it had already been built and therefore wasn’t part of the DA, even though anyone living in or visiting the new house would presumably rely on the driveway to get there.
Councillors initially accepted the staff advice and approved the DA before carrying out a site visit and having second thoughts, Cr Williams said.
‘We went and walked the road, we went and walked down into this rainforest gully, and it was really the few of us standing there at once going, how can this be?’ Cr Williams said.
‘You know, that’s when we began to really question: is us approving this DA really approving this road?’
Councils on notice to stop ignoring unauthorised works in new DAs
The councillors’ concerns inspired Cr Williams to declare a rescission motion against the DA’s approval that won majority council support and sparked another legal battle with the Whites.
Contrary to what council staff had advised, the LEC found that because the 2016 works weren’t authorised and never had been, councillors had to do the new DA assessment from the land’s pre-2016 status.
‘That’s a really clear instruction now to all the councillors and to all those councillors’ staff that where there is illegal works, that’s not your starting point,’ Cr Williams said.
‘Your starting point is actually what was the state before those illegal works were done and if those illegal works aren’t rectified by your DA, should you really be approving it?’
Two wrongs don’t make a right: Labor candidate tells developers they can’t ‘cover’ breaches later
Cr Williams said the LEC didn’t typically award costs but he believed the expensive case would ultimately save the council money as it was a preventative outcome.
Mr and Mrs White now owned a road that led to effectively nowhere and Cr Williams said one of the key criteria for determining whether or not they could build a new house on the block was whether or not there was already a suitable site elsewhere.
‘One of the foundational issues here is that there is because there’s already another house on the block,’ Cr Williams said.
‘I think the message is to developers that you need to work with us,’ the mayoral candidate told The Echo, ‘if you do the wrong thing we’re not just going to allow you to cover it up later on’.
Cr Williams praised the efforts of the Scenic Escarpment Protection Alliance, a group made up mostly of the Whites’ neighbours, and others who supported the council in court.
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