Managing unapproved development is not a new challenge for Byron Shire Council (BSC), or other Northern Rivers councils.
The challenge is to do it effectively, and achieve positive outcomes for both Council and the people who have historically unapproved dwellings.
It is no simple issue, especially considering the history of alternative, intentional communities that developed in the region where there were no legal pathways for them to create the communities they envisioned.
‘Historical communes and rural land sharing in the 1960s to 1970s developed with no, or few, approvals,’ explained former BSC Planning Director, Ray Darney to The Echo.
‘Prior to the 1968 Interim Development Order, and the 1988 LEP, there was a history of few approvals in rural zones, primarily they were for banana farms and sharefarms etc.’
The pressure to develop and set up a structure for multiple occupancies (MO) in Byron Shire and other areas came from the need to look at how to provide further housing and bring these types of communities into the legal structure of both state and local planning. It is a long journey.
Mr Darney brought many illegal dwellings through the approval system with BSC during his tenure as head of planning from 2004 to around 2015.
‘Compliance staff have a difficult job. We proactively went through a try to resolve many of the issues that are on those communes and rural land sharing over that period of time,’ he said.
During the period of 2010–2012, BSC approved about 180 occupancies over about probably 20 sites across the shire.
‘There are historical MOs from the hippie era; they’re there, and they’re long-term occupancies. Then you’ve got a culture in the Shire and some other shires of people doing illegal building works or unapproved building works.
‘The NSW Ombudsman’s Enforcement Guidelines (NSW OEG) allows discretion in dealing with unapproved development,’ he explained.
‘As staff noted to councillors in 2011, the NSW OEG for Councils allow for discretion in dealing with unapproved development matters. In particular, both the policy and the guidelines stress that particular circumstances of hardship affecting the person, the subject of a complaint, need to be considered in decision making. The discretion should not be determined by individual staff, but by Council or a panel with appropriate policy guidance.’
Mr Darney said the NSW OEG allows councils to look at a range of ways to move forward and provide pathways for approval to these historical dwellings.
Special consideration
‘Many of these can be approved via a development application (DA). Long-term MOs need special consideration. If they [the houses] are a danger to the occupier, Council may need to serve notice to upgrade, but it is preferable to assist by directing a way forward to the upgrade. Buildings built 50 years ago will find it difficult to meet 2025 standards and it would be incredibly costly. Upgrades to a safe standard rather than demolition or meeting the current Building Code of Australia is the way forward, and the NSW OEG provides these options’.
‘When we worked on this issue from around 2010, we recognised that some of the houses couldn’t meet all requirements, so we looked at the onsite disposal (effluent), bushfire, and structural safety,’ he explained.
‘There’s many, many farm houses that are constructed from probably 1919, 1920 onwards, in Byron and all over the west of NSW that have got no outright approvals. We don’t go and pull those down. What we do is, if somebody’s selling the block of land, or the farm, they can get a structural engineers certificate and a building information certificate that says the building is safe and that council is not going to take any action with regard to that building.
‘For those houses that are already there, we certainly can’t get 100 per cent compliant with the 2025 building regulations because the code has changed dramatically from 1960 and 1970 through to 2025. They need to meet the basic needs of effluent and water, structural safety, kitchen, showers, etc.
‘That’s what we did at the time, and that’s why I believe you can get a certification from an engineer that the dwelling is not going to fall down. Then council building surveyors can have a look and say, they’ve got adequate toilet, shower, cooking facilities, etc, then the council has the ability, in my opinion, to be able to outright give a letter saying that they will allow that occupation.’
Time and trust
Mr Darney highlighted that the process took time and trust between BSC and the community to achieve these positive outcomes.
‘We had meetings with the community to discuss the ways forward,’ he said.
‘We need to allow those past historical buildings to remain and be upgraded when that can be done safely. Council set the policy as to how far they’re going to pursue any particular issue. Council should make it clear that action will be taken to discourage further structures being erected without needed approval, but give every assistance possible for the long-term house structures to be upgraded to an adequate standard. Council is able to give a clear policy on how to deal with these long-term rural occupancies and assist in a way forward.’
For four decades The Echo has printed the stories some people loved, some people hated, and some pretended not to read. If you want us to keep telling the truth, the real truth, not the sugar-coated version. We’ll need your support to keep the presses rolling. 
