In the news

Published on 18 December 2018

11 December 2018

Dear Mr Beatson

I refer to your recent letter to me as General Manager Byron Shire Council expressing your concerns as to the ‘workload and competency’ of Planning and Infrastructure staff. 

In your letter you assert that certain staff ‘fails to understand and act on the priorities as set by Byron Shire Council as well as the Byron Shire Community’.  To this end you cite a number of recent development matters.

I have now had the opportunity to review each of the particular matters that you have cited and discussed these with the Director Sustainable Environment and Economy. I do note however that various communications to you have already been provided by staff on these matters dating from August on. Notwithstanding the above I provide my further more detailed response to each matter raised below.

•    Byron Shire Council failed to have its council representative attend the Joint Regional Planning Panel to determine DA 2016NTH020 DA – Hospital.

https://www.planningpanels.nsw.gov.au/DevelopmentandPlanningRegister/tabid/62/ctl/view/mid/424/JRPP_ID/2805/language/en-AU/Default.aspx

The council representatives as resolved by council at the time of the Joint Regional Planning Panel meeting for the hospital DA were Cr Basil Cameron and David Milledge.

Under the Panel Operations Procedure and Code of Conduct set out by the Joint Regional Planning Panel Cr Cameron had a conflict of interest.  The Byron DCP 2014 was amended by Council in February 2018 to specifically account for the development. Council’s Minutes of the meeting held on Thursday 22 February 2018 records the change to the DCP (Report No. 13.14) and also listed Councillor Cameron as having been in attendance at that meeting.

David Milledge, the other Council representative, was away and unable to attend the meeting.

Under the Panel Operations Procedure and Code of Conduct –

A council nominates members and advises the Joint Regional Planning Panel of who they are.

The Joint Regional Planning Panel contacts these members directly about their ability or not to sit on the Panel for a meeting.

Should these members not be able to sit, the alternate members (if any nominated) are asked to sit by the Joint Regional Planning Panel. If no members can sit, then the 3 state members are the Panel.

An update on the current council membership of the Joint Regional Planning Panel follows –

Council has appointed Vanessa Ekins and Katie Milne as its nominees on the JRPP when it considers the West Byron DAs.  

David Brown is a Byron Shire Council nominee and Joe Vescio is an alternate. Councillor Basil Cameron is another alternate.  

http://www.planningpanels.nsw.gov.au/PlanningPanels/CouncilMembers/tabid/84/language/en-US/Default.aspx

•    The staff report to the Joint Regional Planning Panel for DA recommended approval for a four-story development.

2017NTH025 DA - Mixed Use Development was determined by the Joint Regional planning Panel 14 November 2018, by refusal.

The (final) development assessment was undertaken by staff on the basis that the Council had considered that the land zoned B2 Local Centre and on the eastern site of Jonson Street was suitable for a maximum height of 11.5 metres and that FSR controls would be removed across Byron Bay Town Centre, subject to Gateway determination (Council meeting of 20 September 2018 (Report No.13.9.) (https://byron.infocouncil.biz/Open/2018/09/OC_20092018_AGN_779.PDF).

This follows an earlier resolution of Council to undertake preliminary (pre-Gateway) community engagement to discuss planning controls under review in response to the Masterplan. Council in considering the report resolved to increase the building height on the south eastern side of Jonson Street from 9 metres to 11.5 metres and to remove the maximum FSR in Byron Bay Town Centre where land is zoned B2 Local Centre.

In this regard it is important to understand that the elected council and council staff have distinctly different roles in the handling of DAs. Section 352 of the Local Government Act 1993(LG Act) provides for the independence of council staff in the preparation of advice and recommendations. The LG Act provides that a member of staff is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the staff member. Equally, a council or councillor is not bound by the advice or recommendation made by a member of staff. The same applies to the joint regional planning panel when acting as the determining authority for development applications.

Staff have acted in accordance with a resolution of Council for the purposes of their assessment of the development application. Staff otherwise complied with Council and Panel procedures as they are required to do.

•    That staff accepted late applications from developers for two West Byron Development Applications leading the development applications being deferred.

Under the Environmental Planning and Assessment Regulations an applicant can apply to amend a development application at any time up to its determination (but only with the agreement of the consent authority).  In this instance the consent authority was the Joint Regional Planning Panel.  The Joint Regional Planning Panel was advised by council staff of receipt of the amended plans (late) for the R & D site DA and that staff would not be able to assess these prior to the Panel meeting.  The Joint Regional Planning Panel secretariat advised staff to proceed with an addendum report on these amended plans for consideration of the Panel at the scheduled meeting. 

Council staff have complied with the Panel Operations Procedures in all respects. It is / was ultimately a decision for the Panel Chair as to whether or not a meeting date is confirmed, and or deferred based on the advice provided by Council staff.

•    That staff told councillors in late October that could not have an assessment of the development application to the Joint Regional Planning Panel before the Land and Environment Court in February, but now due to councillors will report to February.

To clarify, there are two separate development applications being considered for West Byron, each is at a different point in the assessment process. Your claim confuses the two development applications.

2018NTH007 DA - Subdivision of Six (6) Lots into Three Hundred and Eighty Seven (387) Lots consisting of Three Hundred and Seventy Eight (378) Residential Lots, Two (2) Business Lots, Two (2) Industrial Lots, One (1) Recreation Lot and Four (4) Residue Lots.

2017NTH013 DA - Staged Development Application for Subdivision of Land Stage 1 – Subdivision of Nine (9) Lots into Two Hundred and Ninety (290) Residential Lots in Nine (9) Sub–Stages, Stage 2 – Concept Plan for Residual Land including Medium Density Residential, Low Density Residential, Commercial, Industrial, Recreational and Environmental Management Precincts.

2018NTH007 DA has recently been deferred by the Northern Joint Regional Planning Panel pending a further assessment by Council staff on amended plans.  It is also set down for a Land and Environment Court conciliation conference on 12 February 2019.

2017NTH013 DA is under assessment by Council staff, and is not anticipated to be reported to the Joint Regional Planning Panel until 2019.

Regarding the timing of the assessment of the R & D Site DA:

Staff are now undertaking a review of the amended plans submitted to the development application lodged.  This review has been scheduled to be completed to meet the Joint Regional Planning Panel meeting deadline for a meeting 4 February 2019. The Land and Environment Court (LEC) S34 conference is scheduled 12 February 2019.  As per LEC practice notes, amended plans from the applicant may be submitted up to and during the LEC process.  However, should the DA be refused by the Joint Regional Planning Panel  prior to the S34 Conference, legislation allows the appeal process to continue.

Regarding the timing of the assessment of the Villaworld DA:

Due to current work commitments including the R & D Site DA, some of Council’s experts involved in the review of the Villaworld subdivision DA, are unlikely to have their assessment of the DA including new information recently provided until the beginning of the New Year. Consequently, the JRPP consideration of the application will need to be held over until 2019.

•    Council staff proposal for rezoning fails on several accounts as presented by speakers at the November 22 meeting of council.

It is important to clarify the context and requirements for staff in preparing the report for the 22 November meeting.

Council considered an urgency motion at its ordinary meeting 18 October 2018 and resolved as follows:

18-711 Resolved:

1.   That Council commence an urgent review of the current zoning of the West Byron Release Area to identify a zone regime for the development of the land that is logical, accounts for the site constraints, and provides for a sustainable development yield and form that recognises the significance of the land to the Byron community and its potential impacts on the wider catchment area.

2.   That a revised zone concept plan be brought to the next Council meeting.

3.   That Council inform the Premier, the Hon. Gladys Berejiklian, the Planning Minister, and local state members of this resolution, acknowledging also the Premiers recent statements regarding that due to the constraints concerning this area the more appropriate outcome in this area would be a far smaller, more sustainable development yield and recognition of the significance of the land to the Byron community.

As per items 1 and 2 above, staff completed a review of the West Byron Release Area zone application and submitted an alternate zone application to Council for its consideration at the 22 November ordinary meeting.  The time allowed for the report was extremely limited.

The alternate zone application presented to council met the requirements of the resolution.  It sought to provide for a substantial reduction in the overall footprint allocated for ‘urban development’, by:

  • Increased protection for sensitive wetland habitat on the southern parts of the land through expansion of the area subject to E2 Environmental Conservation zoning;
  • Increased protection of the Belongil Creek ICOLL and catchment through expansion of the E2 zoning within the eastern part of the land, with a subsequent requirement for substantial revegetation (Note: an item of Aboriginal heritage significance is also located in this area, and the E2 zoning would provide ongoing protection) – the increased areas of E2 zoning on the southern and eastern edges of the land provide a substantially improved wildlife corridor that links important habitat areas;
  • Protection for the area known as significant acid frog habitat, located in the western part of the land, through E2 Environmental Conservation zoning;
  • E4 Environmental Living zoning for the area around the acid frog habitat, which would allow a greater variety of residential lot types through a provision of lot size averaging, which could be utilised to buffer important habitat areas;
  • E3 Environmental Management zoning for a 20 metre wide strip along the Ewingsdale Road frontage of the land, which would ‘push back’ the footprint of the development to provide greater future flexibility for Ewingsdale Road and reduce the visual impact of the development through this corridor (also improving amenity outcomes for future lots created along this frontage);
  • E3 Environmental Conservation zoning for the main drain through the property, leading to a smaller area of E2 Environmental Management zoning covering an important area of koala habitat (directly adjoining and contiguous with the larger area recommended for E2);
  • A combination of urban zoning for the area north-east of the main drain, which could include B4 Mixed Use (for a Village Centre), RE1 Public Recreation to provide an area of local open space adjoining the centre, and R1 General Residential and/or R3 Medium Density Residential to provide for an innovative and contemporary mix of housing types close to the Village Centre (Note:  Attachment 2 provides information around contemporary housing typologies that could be promoted for this urban area to provide a more sustainable and affordable housing mix);
  • R2 Low Density Residential zoning for the remaining urban area south-west of the main drain.

The zone application review provided recommended zones and objectives for those recommended zones it did not prescribe any specific details on controls for the land under those proposed zones. Controls can be applied differently across the Shire to locations / sites or parcel of land. 

This zone application review was not a planning proposal or final local environmental planning instrument.  This work is yet to be done as was discussed at the meeting on 22 November 2019.

Staff are now progressing the most recent resolution of council with respect to this matter which includes reference to where appropriate design parameters as shared during the public access. This work will assess what is an appropriate level of development for the site and assign planning controls accordingly.

•    Staff appear to act against the direction of councillors…. I expect a public apology and even sackings… such incompetency must not continue.

I appreciate fully the passion, commitment and divergent views of the Byron Shire community to planning and development matters, and that this can often lead to differences of opinion during the development assessment process and subsequent to a decision.

Notwithstanding the above, it remains an obligation on staff to ensure development decisions are made lawfully and fairly for all parties involved.

In addition, staff must ensure the efficient and effective operation of council and implement decisions of council without delay.

As General Manager, I have full confidence in the planning staff and the work they do.  I see no evidence that staff have acted inappropriately, without competence or professionalism.

As such I will not be taking further action.

I also note that you had your letter published in the letters to the editor of the Byron Shire Echo.  I regret that you did not afford me the courtesy of time to respond before doing so.  My intention will be now to have my response published on Council’s website so that those staff who are the subject of your claims, and interested members of the community are aware of my response to your claims.

Yours sincerely

Mark Arnold
General Manager