Ordinary (Planning) Meeting Minutes
13 April 2023
MINUTES OF THE BYRON
SHIRE COUNCIL Ordinary (Planning)
Meeting HELD ON Thursday, 13 April 2023 COMMENCING AT 9:10AM AND CONCLUDING AT 12:24PM.
I2023/519
PRESENT: Cr
M Lyon (Mayor), Cr D Dey, Cr A Hunter, Cr S Ndiaye
(Virtual), Cr M Swivel and Cr P Westheimer
Staff: Mark Arnold (General
Manager)
Esmeralda
Davis (Director Corporate and Community Services)
Danielle
Hanigan (A/Director Infrastructure Services)
Shannon
Burt (Director Sustainable Environment and Economy)
Ralph James (Legal Counsel)
Donna
Johnston (Grants Coordinator) – Item 11.1
Greg
Smith (A/Manager Sustainable Development) – Item 11.3
Storm
Townsend / Amber Evans Crane (Minute Takers)
The Mayor opened the meeting and acknowledged that
the meeting is being held on Arakwal Country and that we pay our respects to
the elders past and present and extend our respect to the Bundjalung clans
whose lands and waters are part of the Shire.
Cr Swivel left the Chambers
at 9.11am in accordance with his declared pecuniary interest.
Public
Access
Prior to dealing with the circulated reports and associated
information, a Public Access Session was held and Council was addressed on the
following:
Public Access
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Report No. and Title
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Name
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For/
Against
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Representing
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Submission Received in
form of
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|
8.1
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Feros Care
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Maree Eddings
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For
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Friends and Family of the Residents of Feros Care
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In person
|
|
Nicholas Towers
|
Feroscare Member
|
Cr Swivel returned to the Chambers at
9:41am.
Submissions
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Subject
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Name
|
Representing
|
Submission Received in
form of
|
|
West Byron Flooding
|
Jo Faith
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Community Alliance for Byron Shire (CABS)
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In Person
|
|
Request to dredge watercourse to Kings Creek
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Marie Oliver
|
Self
|
Read by Staff
|
The meeting adjourned at 9.49am for a
recess break and reconvened at 10.09am.
Apologies
Cr Pugh was an apology in
accordance with his prior accepted leave of absence.
(Resolution No. 23-059)
|
|
Procedural
Motion
|
|
23-095
|
Resolved that
the apologies from Cr Coorey and Cr Balson be accepted and a leave of absence
granted. (Lyon/Hunter)
The motion was put to the vote and
carried unanimously.
|
Applications
to Attend by Audio-Visual Link
|
|
Procedural
Motion
|
|
23-096
|
Resolved that Cr Ndiaye be permitted to attend the meetings
held on 13 April 2023 by audio-visual link. (Lyon/Dey)
The motion was put to the vote and
carried unanimously.
|
Requests
for Leave of Absence
There were no requests for leave of
absence.
Declarations
of Interest – Pecuniary and Non-Pecuniary
Cr Swivel declared a pecuniary
interest in Report 8.1. The nature of the interest being that the Councillor
provided professional advice to the residents, families and members of Feros
Care United. Cr Swivel elected to leave the Chamber and will not participate in
discussion and the vote.
Tabling of Pecuniary Interest
Returns
In accordance with section 440AAB of the Local Government
Act 1993 and clause 4.22 of the Code of Conduct for Staff, the Mayor tabled
Primary Returns of Interests for the following staff:
·
John
Drobec, Project Officer
·
Katie
Hughes, Project Engineer
Adoption
of Minutes from Previous Meetings
|
23-097
|
Resolved that the
minutes of the Ordinary (Planning) Meeting held 9 March 2023 be confirmed. (Lyon/Hunter)
The motion was put to the vote and
carried unanimously.
|
Reservation
of Items for Debate and Order of Business
The Mayor suspended standing orders to allow for items to be
reserved for debate, being:
Staff Reports
Corporate and Community Services
Report No.
11.1 Growing Regional Economies Fund - project
nomination
Sustainable Environment and Economy
Report No.
11.2 PLANNING – Development Application No.
10.2022.159.1 – Subdivision of Land being a Boundary Adjustment between
Two (2) Lots – 14 Kendall Street and 25 Cavvanbah Street Byron Bay
Report
No. 11.6 Policy (New) - Conflicts of Interest for
Council related development
The remaining Recommendations
and Committee Recommendation were adopted as a whole, being moved by Cr Lyon
and seconded by Cr Hunter. Each recommendation is recorded with a separate
resolution number commencing at Resolution No. 23-098 and concluding with Resolution No. 23-105.
Staff Reports - Sustainable
Environment and Economy
|
|
Report No. 11.3 PLANNING
– Development Application No. 10.2022.247.1 – Torrens Title
Subdivision of One Lot into Two Lots – 135 Jonson Street Byron Bay
File No: I2023/329
|
|
23-098
|
Resolved that,
pursuant to Section 4.16 of the Environmental Planning & Assessment Act
1979, Development Application No. 10.2022.247.1 for Torrens Title Subdivision of One Lot into Two Lots, be granted consent subject to the conditions
in Attachment 1 (E2023/23526) to this Report. (Lyon/Hunter)
The motion was put to the vote and
carried unanimously.
Crs Hunter, Lyon, Ndiaye, Dey,
Swivel and Westheimer voted in favour of the motion.
Nil voted against the motion.
|
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Report No. 11.4 PLANNING
- Report of the Planning Review Committee held 2 March 2023
File No: I2023/318
|
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23-099
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Resolved that Council endorses the outcomes of the
Planning Review Committee meeting held on 2 March 2023. (Lyon/Hunter)
The motion was put to the vote and
carried unanimously.
Crs Hunter, Lyon, Ndiaye, Dey, Swivel
and Westheimer voted in favour of the motion.
Nil voted against the motion.
|
|
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Report No. 11.5 PLANNING
- DA 10.2021.657.1 - Community title subdivision to create sixteen (16) lots
inclusive of the neighbourhood management lot of an approved multiple
occupancy comprising fifteen (15) dwelling sites – 375 Coorabell Road
COORABELL
File No: I2023/391
|
|
23-100
|
Resolved that pursuant to Section 4.16 of the Environmental
Planning & Assessment Act 1979, Development Application No. 10.2021.657.1 for Community Title subdivision to create
sixteen (16) lots inclusive of the neighbourhood management lot of an
approved multiple occupancy comprising of fifteen (15) dwelling sites at 375
Coorabell Road, Coorabell be approved subject to the conditions of consent
attached to this Report (Council Document #E2023/27114). (Lyon/Hunter)
The motion was put to the vote and
carried unanimously.
Crs Hunter, Lyon, Ndiaye, Dey,
Swivel and Westheimer voted in favour of the motion.
Nil voted against the motion.
|
Staff
Reports - Infrastructure Services
|
|
Report No. 11.7 Byron
Community Markets Parking Arrangements
File No: I2023/354
|
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23-101
|
Resolved that Council receive and note this Report on
parking options provided for Byron Community Markets Stallholders. (Lyon/Hunter)
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Reports
of Committees - Infrastructure Services
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23-103
|
Resolved that Council adopts the following Committee
Recommendation:
Report No.
6.1 Rural
Fire Brigade - Authorised Parking
File No: I2023/305
Committee Recommendation 6.1.1
That LTC support the
installation of a restricted parking zone adjacent the Rural Fire Service
building, Alcorn Street, Suffolk Park as shown by attachment 1 (E2023/21961). (Lyon/Hunter)
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23-104
|
Resolved that Council adopts
the following Committee Recommendations:
Report No.
7.1 Reconnecting
Mullumbimby May 2023
File No: I2023/93
Committee Recommendation 7.1.1
1. That
Council support Reconnecting Mullumbimby 2023 be held 6 May 2023 3.00pm to
9.00pm.
2. That
Council support in Part 1 is subject to:
a) separate
approvals by NSW Police and TfNSW being obtained;
b) the
event organiser providing council with an updated Traffic Management Plan and
Traffic Guidance Scheme/s for the event;
c) development
and implementation of a Traffic Management Plan and Traffic Guidance Scheme/s
by those with appropriate TfNSW accreditation and the holding of current and
appropriate levels of insurance and liability cover;
d) the
impact of the event be advertised, and charged at cost to the organisers, via
a notice in the local weekly paper and appropriate variable message signage a
minimum of one week prior to the operational impacts taking effect, noting it
must include the event name, specifics of any traffic impacts or road
closures and times, alternative route arrangements, event organiser, a
personal contact name and a telephone number for all event related enquiries
or complaints;
e) the
event be notified on Council’s web page with the event organiser
supplying Council with the relevant information.
3. The
event organiser to:
a) inform
the community and businesses that are directly impacted (e.g. within road
closure zones) via written information which is delivered to the property in
a timely manner so as to document, consider and respond to any concerns
raised;
b) arranging
for private property access and egress affected by the event
c) liaising
with bus, taxi and waste operators and ensuring arrangements are made for
provision of services during conduct of the event;
d) consulting
with emergency services and any identified issues be addressed;
e) holding
$20m public liability insurance cover which is valid for the event;
f) paying
Council’s Road Event Application Fee prior to the event;
g) not
place any signage on the road related area of the Pacific Highway.
4. That
provisions are made for safe access for heavy vehicles at the intersections
of Stuart Street/Burringbar Street, and Stuart Street/Tincogan Street. (Lyon/Hunter)
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23-105
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Resolved that Council adopts
the following Committee Recommendations:
Report No.
7.2 Event - Bangalow Billycart Derby May 2023
File No: I2023/55
Committee Recommendation 7.2.1
1. That
Council support the Bangalow Billycart Derby to be held on 21 May 2023.
2. That
Council support in Part 1 is subject to:
a) separate
approvals by NSW Police and TfNSW being obtained;
b) the
event organiser providing council with an updated Traffic Management Plan and
Traffic Guidance Scheme/s for the event;
c) development
and implementation of a Traffic Management Plan and Traffic Guidance Scheme/s
by those with appropriate TfNSW accreditation and the holding of current and
appropriate levels of insurance and liability cover;
d) the
impact of the event be advertised, and charged at cost to the organisers, via
a notice in the local weekly paper and appropriate Variable Message Signage a
minimum of one week prior to the operational impacts taking effect, noting it
must include the event name, specifics of any traffic impacts or road
closures and times, alternative route arrangements, event organiser, a
personal contact name and a telephone number for all event related enquiries
or complaints;
e) the
event be notified on Council’s web page with the event organiser
supplying Council with the relevant information.
3. The
event organiser to:
a) inform
the community and businesses that are directly impacted (e.g. within road
closure zones) via written information which is delivered to the property in
a timely manner so as to document, consider and respond to any concerns
raised;
b) arranging
for private property access and egress affected by the event;
c)
liaising with bus, taxi and waste operators and ensuring arrangements are
made for provision of services during conduct of the event;
d) consulting
with emergency services and any identified issues be addressed;
e) holding
$20m public liability insurance cover which is valid for the event;
f) paying
Council’s Road Event Application Fee prior to the event;
g) not
place any signage on the road related area of the Pacific Highway.
(Lyon/Hunter)
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Mayoral
Minute
Cr Swivel left the
Chambers at 10:16am in accordance with his declaration of pecuniary interest.
|
|
Procedural
Motion
|
|
23-106
|
Resolved that
Cr Lyon be granted a three minute extension to his speech. (Lyon/Dey)
The motion was put to the vote and
carried unanimously.
|
|
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Mayoral Minute No. 8.1 Feros Care
Village
File No: I2023/511
|
|
23-107
|
Resolved that Council:
1. Requests
the Board of Feros Care to:
a) Abandon
plans to close the Feros Care Village in Byron Bay indefinitely.
b) Provide
a full set of financials for the last three years and the forecast for the
current year with line-by-line details of income and expenditure relating to
the Byron Bay facility, including projections into the future.
c) Detail
any improvements required in order for the facility to maintain accredited in
its current form.
d) Work
with residents and their families and interested members of the community to
address any funding shortfalls, including by dialogue with State and Federal
Governments if there is a systemic issue that is making the facility
financially unviable.
e) Provide
an explanation of the “security of tenure” provisions of the Aged
Care Act and how that impacts on the future viability of facilities such as
Feros Village.
f) Meet
with a delegation of Council (Councillors and Staff) to discuss the points
above.
2. Seeks information from Crown Lands as to tenure and duration of
that tenure on the Crown Land property containing Feros Village.
3. Writes
to the Minister for Health and Aged Care (Cwlth) explaining the situation and
history and Council’s concerns regarding the actions and future
proposals for the Feros Care Village at Byron Bay. (Lyon)
The motion was put to the vote
and carried unanimously.
Cr Swivel was not present for the
vote.
|
Cr Swivel returned to the Chambers at
10:52am.
Notices of
Motion
|
|
Notice of Motion No. 9.1 Alternative Flow path
Bayshore Drive
File No: I2023/490
|
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23-108
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a. How
often it is used and in what conditions, i.e. wet weather and dry weather.
b. The
amount of water transferred down it from the STP under various conditions,
including as a percentage of total out flows.
c. Any
filling that has been done to grade the drain toward west Byron and its effectiveness.
d. Performance
relative to initial project objectives.
e. Impact
on the amount of water leaving the STP through the drain on the Flick’s
property.
f. The
hydraulic efficacy of the flow path, given the stagnant water apparent in the
photographs attached in the Notice of Motion.
2. The
Report also goes on the agenda of the next meeting of
Council’s Water & Sewer Advisory Committee. (Lyon/Hunter)
The motion was put to the
vote and carried unanimously.
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Delegates'
Reports
Cr Dey referred to his Delegates Report
on the 14 March 2023 Far North Coast BFMC meeting published in the Agenda for
this meeting.
Cr Swivel gave a report on the North Byron Parklands
Regulatory Working Group
The Mayor provided a Public Notice regarding flood recovery.
The Mayor and Northern Rivers Reconstruction Corporation are hosting a Community
Roundtable session via Zoom on 18 April 2023 at 5pm. The purpose of the
session is to further inform the community on the Resilient Homes Program and
Resilient Lands Program and to allow an open discussion to take place between
local residents and the Northern Rivers Reconstruction Corporation. Further
details will be available on Council’s Website.
Staff
Reports - Corporate and Community Services
|
|
Report No. 11.1 Growing
Regional Economies Fund - project nomination
File No: I2023/482
|
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23-109
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Resolved that Council:
1. Endorses an application
for Lot 12 Bayshore Drive under the NSW Government’s Growing Regional
Fund.
2. Receives a report
showing how the co-contribution will be financed and the impact on
Council’s current and future budgets.
3. Staff
provide a report to Councillors on the above prior to accepting any offer of
any financial support for the above mentioned application. (Hunter/Dey)
The motion was put to the vote and
carried unanimously.
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Staff
Reports - Sustainable Environment and Economy
|
|
Report No. 11.2 PLANNING
– Development Application No. 10.2022.159.1 – Subdivision of Land
being a Boundary Adjustment between Two (2) Lots – 14 Kendall Street
and 25 Cavvanbah Street Byron Bay
File No: I2023/321
|
|
23-110
|
Resolved that, pursuant
to Section 4.16 of the Environmental Planning & Assessment Act 1979,
Development Application No. 10.2022.159.1 for Subdivision of Land being a Boundary Adjustment between Two
(2) Lots, be granted consent subject to
the recommended conditions in Attachment 1 (E2023/22601) to this Report.
(Westheimer/Dey)
The motion was put to the vote and
carried unanimously.
Crs Hunter, Lyon, Ndiaye, Dey,
Swivel and Westheimer voted in favour of the motion.
Nil voted against the motion.
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Cr Ndiaye left the Chambers at 12:19pm
and did not return.
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Report No. 11.6 Policy
(New) - Conflicts of Interest for Council related development
File No: I2023/392
|
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23-111
|
Resolved that Council:
1. Notes
that the NSW State Government introduced on 3 April 2023, new requirements
into the Environmental Planning and Assessment Regulation 2021, to address potential
conflicts of interest in Council-related development.
2. Notes
that Council must now have an adopted policy to manage development
applications where Council is the developer or landowner, or where Council
holds a commercial interest in the land that is subject of an application.
3. Adopts, as a consequence of 1 and 2, the Conflicts of
Interest for Council-
Related Development Applications Policy
(Attachment 1 #E2023/22323) with minor changes as follows:
·
Reference now to General Manager and or delegate instead of
Director Sustainable Environment and Economy.
·
And minor wording edits section 3.1.
4. Places
the adopted Conflicts of Interest for Council-Related Development
Applications Policy (Attachment 1 #E2023/22323) on exhibition for a minimum
period of 28 days, with any significant submissions received to be reported
back to Council. If no significant submissions are received, then the Policy
be adopted, with no further action required.
5. Notes
that this is the process followed by other Councils, including Ballina Shire. (Dey/Lyon)
The motion was put to the vote and
carried unanimously.
Crs Hunter, Lyon, Dey, Swivel and
Westheimer voted in favour of the motion.
Nil voted against the motion.
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Questions
With Notice
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Question With Notice No. 13.1 Bamboo
on the bank of the Brunswick River
File No: I2023/388
|
|
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Cr Dey asks the
following question:
There are several large clumps of mature bamboo on the
north bank of the Brunswick River, on public land at the rear of properties
located on the ‘bulb’ end of Kamala Court. Bamboo is not
native here.
Pictures below show (1) a large root ball that recently
collapsed into the River leaving its culms (the official word for the poles)
in the river where they may capture other debris and cause hydraulic
resistance to flow; and (2) the bank vacated by that fall, showing that it is
being undercut and that more failures are likely.
My cursory assessment is that this is the first of what
will be many collapses over time, and that the right solution is for the
bamboo to be removed and replaced with endemic species compatible with the
river’s natural functions of flow, flood, fish, for example, and with
residential use of the general area.
1. to
whom should residents report concerns of this nature, for example concerns
that flooding will be exacerbated if rehabilitation is not undertaken within
a reasonable timeframe?
2. if
Council is the agent best equipped to receive such reporting, what is the
process from here? Can rehabilitation works on the riverbank be
designed with expert assistance, put into a list of works that would assist
to keep the river channel free and unimpeded as well as to stabilise the
bank, and put forward for the significant amount of funding needed to execute
them in a timely manner?
Picture 1 - large clumps of bamboo on the riverbank
with one fallen in and partially blocking the channel:
Picture 2 – further clumps of bamboo ready to
fall into the river channel: 
Response Director Infrastructure Services:
Response to Question 1
Concerns of this nature are muti-faceted:
· concern regarding perceived impact of bamboo to flooding of the
river and associated impact to adjacent property.
· concern of bamboo being an environmental weed and needing removal.
· concern of large bamboo clumps impacting the values of the
Brunswick River through de-stabilisation of the riverbank and sedimentation.
As such, there are various agencies who residents report
concerns to, however mostly these concerns are forwarded back to Council
staff. Council is responsible for flood mitigation and development of
flood plans; we suggest that Council is the appropriate authority to receive
concerns regarding flooding matters.
Council has an active Bush Regeneration Team that work
within riparian habitats and can provide advice on the priority of bamboo
removal and logistics for consideration. We are currently researching
alternative methods of eradicating large-scale Bamboo while limiting
collateral damage.
The Brunswick River is a Crown Waterway with
responsibility and management resting with the Department of Crown Lands, and
any works within the river would require a Crown Lands Licence which can take
up to 6 months.
Response to Question 2
At present Council is working closely with Local Land
Services (LLS) to address priority river erosion sites within the Brunswick
Catchment as part of a recent funding allocation under the North Coast
Riparian Restoration Program. LLS have an active database of landowners
who have lodged requests regarding flood impacts to private property and who
receive advice and support from LLS. The database is used to assess and
evaluate sites for future funding that improve flood resilience and stabilise
sites in an order that reflects their priority and recovery potential within
the landscape.
Council staff are working closely with LLS staff to
deliver priority projects funded under this program before the end of June
2023. As part of the assessment process a Multi-Criteria Analysis Tool
has been developed to assess integrated information on the biological and
physical characteristics of the waterbody, the potential for integrating
agencies and efforts, and the potential success of a site based on landholder
compliance, risk of failure and project costs.
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Question With Notice No. 13.2 Mayor
diary and delegate reports
File No: I2023/480
|
|
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Cr Dey asks the
following question:
Council’s website has a page, as linked and
screenshot below, claiming to display the Mayor’s diary:
https://www.byron.nsw.gov.au/Council/Mayor-and-councillors/Mayor-and-General-Manager-diary
I made a similar commitment when running for Mayor in
2021, that my diary would be made public. Reasons for a public diary
include:
(i) that
the office of Mayor is a public office, and
(ii) that
this office should represent the views of the elected Council and thereby of
the Shire, not the Mayor’s personal views.
Sadly, many bodies and most state government officials
think that a chat with the Mayor fulfils their obligations to “consult
with the Local Government Area”. This is incorrect.
Post flood examples of such consultation include
meetings between the Mayor and various Resilience NSW officials, and between
the Mayor and the CEO of Northern Rivers Reconstruction Corporation.
An extreme example of representation was the Mayor
becoming the main spokesperson presenting a 2022 Flood Impact Assessment on
behalf of Resilience NSW. The FIA was about fill placed on rail
corridor land at Prince Street Mullumbimby. This fill has no support
from the elected Council and yet has the full support of the Mayor.
As the Shire’s only delegate on bodies like
Northern Rivers Joint Organisation, the Mayor could be reporting to the
Council and hence to the public via a Delegate Report. According to the
NRJO’s website, it “meets quarterly to address matters of
regional significance”. Matters that it regards as within its purview
include the Incinerator project at Casino. The NRJO publishes Agendas
and Minutes at:
https://www.northernriversjo.nsw.gov.au/about-us/meetings
Minutes from the “board meeting” of August
2022 are attached. Those for December are not published, as of 27 March
2023. Byron Shire would benefit from knowing how our Shire’s
needs are brought to and dealt with by NRJO. As with our own meeting
Minutes, the thinking behind the Resolution is not recorded.
1. Why is the
Mayor’s online diary a blank, as above?
2. When
will the Mayor report on the substance of his meetings with state and other
officials?
3. When will
the Mayor report on his representation for our Shire to the NRJO?
Response General Manager, Mark Arnold
1. The
Mayor and General Manager 2023 diary summaries will be available on
Council’s website prior to the Council Planning Meeting held on
Thursday 13 April 2023. Staff will then work to make the Mayor and General
Manager diary summaries from 2022 available as soon as practical.
2. The
Mayor and General Manager diary summaries show the individual/organisation
that they met with, the date, and the meeting topic. It is a matter for the
Mayor and at his discretion to determine when and how best to report on these
meetings.
3. All
NRJO Meeting Minutes and Agendas are publicly available for any other
Councillor or members of the public to read. The NRJO Meeting Minutes are
uploaded to NRJO’s website after they have been adopted. It is at the
Mayor’s discretion as to how, when and if he provides a Delegates
Report to Council on the NRJO Board meetings.
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Question With Notice No. 13.3 Fill
on bank of Marshalls Creek
File No: I2023/483
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Cr Dey asks the
following question:
Residents of The Pocket complained in October 2022
about large quantities of fill being placed with no approval on the northern
bank of Marshalls Creek. Council issued a Stop Work Order in November
and a Restore Works Order in December. The latter asks the landholder
at 295 Pocket Road to restore the area back to its original condition, by 7
April 2023.
This would include removal of the fill, which appears
to be about 2m tall.
The four-month time frame was to enable to the
landholder to investigate options if any for retrospective approval of the
fill. That period has expired a week before today’s Council
meeting.
1. has
the fill been removed?
2. has
the site been restored?
3. if
not, what is the status of the site and what is the prognosis for its
restoration back to original?
Response Director Sustainable Environment &
Economy:
As at 27 March 2023, all of the imported fill had been
removed and the flood mound had been restored to its condition prior to the
importation of fill (Terms 1, 2 and 3 of the Order have been complied with).
Seeding of the area is now being progressed and is to be
completed by 7 April 2023.
A final inspection will take place once seeding is completed
to ensure full compliance with the Order.
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There being no further business the meeting concluded at 12:24pm.
I hereby certify that
these are the true and correct Minutes of this Meeting
as confirmed at
Council’s Ordinary Meeting on 11 May 2023.
….…………………………
Mayor Michael Lyon
Minutes