Koonyam Range NSW: when forest dwellers don't value trees

 

IMAGE: Google Earth 11.01.24
Click on images to enlarge

There couldn't be more than a handful of residences on Boogarem Road in the middle of pristine native forest on the Koonyum Range. However, that street is gaining a reputation........

On 11 Jan 2024 the NSW Dept. of Planning and Environment announced that a person described as a local Koonyum Range resident was convicted of clearing 0.35 ha of native vegetation and constructing an unauthorised building in Mount Jerusalem National Park.

The cleared section at Boogarem Road, Koonyum Range NSW after removal of illegal dwelling. IMAGES: Echo, 12 January 2024

InsideLocal Government, 12 January 2024:

A Koonyum Range resident has been convicted and fined by Mullumbimby Local Court after failing to check property boundaries before clearing 0.35 ha of native vegetation and constructing an unauthorised building in Mount Jerusalem National Park.

The actions breach the National Parks and Wildlife Act 1974 and National Parks and Wildlife Regulation 2019.

With fines and a costs order amounting to nearly $22,000 (including a remediation order of $8,000), the court found the local resident had direct responsibility for the offences.

“The felling of forest oaks impacts directly on the habitat and food resources of the glossy black cockatoo, a listed vulnerable species known to occur in the area,” said NSW National Parks and Wildlife Service (NPWS) Area Manager, Jenny Atkins.

“Trees are highly valued in the Byron Shire and their removal, without permission, is not tolerated by NPWS, or the broader community. The fines and the community correction orders imposed by the magistrate in the Mullumbimby Local Court support this.

“This sends a strong and very clear message to people that before you clear land or cut down any trees or do any building work, even on your property, you should know where the property boundaries are.

“You should always check with the local council to see what is allowed and what is not.”

Mount Jerusalem National Park is home to several endangered and vulnerable plants and animals and this sentence is a reminder that native vegetation laws must be taken seriously, she said.

“The seriousness of the offences is reflected in the penalty imposed by the court which, in addition to the fines and costs, included two community correction orders of 12 months.”

In June 2022 Andrew Giles Packshaw was reported as pleading guilty and being convicted of development without consent. It appears he erected a donga.

Mirage News,16 June 2022:

A Byron Shire resident has been fined $60,000 for land clearing and removing trees from a property on the Koonyum Range west of Mullumbimby, and $10,000 for unauthorised building work.

It comes after Council was notified, in October last year, of alleged land clearing, tree removal and construction on a property on Boogarem Road.

Investigations found there was progressive land clearing between April and October last year on a 1,300m2 site including the removal of nine trees ranging in height from 15 metres to 25 metres.

An expert arborist/ecologist engaged by Council found the age of each of the trees that were cut down or pushed over was 40-50 years.

The property is in the Scenic/Escarpment zone where the clearing of land can only be done with development consent.

The offence was aggravated by the fact that the Rural Fire Service had imposed conditions providing that clearing for bushfire hazard reduction did not permit the removal of trees over three metres in height.

Ralph James, Legal Counsel, said that the court found that the impact of the clearing, and the construction of an informal shower and toilet area, had a negative impact on the natural environment and that the clearing of native vegetation and earthworks modified the site which impacted native habitats and drainage

"This land borders a national park and, not surprisingly, the area is home to a number of endangered and vulnerable plants and animals," Mr James said.

"The felling of Forest Oaks impacts directly on the habitat and food resources of the Glossy Black Cockatoo, a listed, vulnerable species known to occur in the area.

"Trees are highly valued in the Byron Shire and their removal, without permission, is not tolerated by Council, or the broader community, and the large fines imposed by the Magistrate in the Mullumbimby Local Court support this," Mr James said.

"In addition to the $60,000 fine for removing trees, the defendant was fined $10,000 for the construction of the informal shower and toilet," he said.

"The defendant has been ordered to also pay Council's legal costs of $5,000.

"I hope this sends a strong and very clear message to people that before you clear land or cut down any trees or do any building work on your property you should check with Council to see what is allowed and what is not," Mr James said.

A win for Ballina Shire Council and its Local Environmental Plan

 

IMAGE: White v Ballina Shire Council [2021] NSWLEC 1468

Echo, 16 November 2021:

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 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.