The company behind the Wallum housing development in Brunswick Heads is once again taking Byron Council to court, this time for allegedly holding up its planned earthworks at the site in an unlawful manner.
As thousands of locals continue their campaign to save the heathland site from becoming home to 124 housing lots, Clarence Property has lodged an appeal against Council’s ‘deemed refusal’ of its stage 2 subdivision works certificate.
The developer needs Council to issue this certificate, which is essentially a procedural box-ticking exercise, before it can start undertaking bulk earthworks at Wallum.
But the process has been delayed by Council requesting additional information from Clarence about stormwater management, and seeking further consultation with the traditional owners.
The developer is arguing that this delay amounts to a ‘deemed refusal’ of its subdivision works certificate because of the length and nature of the delay, and has lodged an appeal against this refusal in the Land and Environment Court (LEC).
‘An application to the Land & Environment court is an increasingly common approach that Developers look to take in order to preserve their legal rights with local councils,’ Clarence Property CEO, Simon Kennedy told The Echo.
‘It’s not Clarence Property’s preferred approach; however, where a matter becomes protracted or political, it may be the best way to resolve the issue.’
Second court case
It is the second time Clarence has commenced proceedings against Council in the LEC for deemed refusal of a subdivision works certificate in the past three months.
On the first occasion, which related to a construction certificate for ecological rehabilitation works, Clarence halted its action against Council when a slim majority of councillors voted to sign off on the certificate.
The February 8 casting vote by mayor Michael Lyon was supported by councillors Mark Swivel, Asren Pugh and Alan Hunter.
They argued part of the reason for authorising the works certificate was advice provided by Council’s legal team, which suggested that Council had few prospects of successfully defending such a case.
This was largely because the development had already been approved by the Northern Regional Planning Panel.
If Council had chosen to pursue the matter and then lost, they suggested Council could have faced a substantial legal bill that included paying Clarence Property’s legal costs.
However, there is strong support from the Save Wallum campaign, the community and other councillors, to pursue legal action regardless of the likely outcome.
They argue that taking this step could encourage the developer to amend its plans, or at least buy time for other avenues to bear fruit.
Before Council Thursday
The matter will come before this week’s Council meeting for debate.
The Wallum site, located next to the Bayside housing estate, is home to multiple threatened species, including the wallum froglet and the wallum sedge frog.
Clarence Property has consent to build 124 residential lots, three medium-density lots, roads and supporting infrastructure.
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