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.

COVIDIOT Liberal Members of NSW & Vic state parliaments openly supporting their threatening, aggressive QAnon and anti-vax "friends".

The Saturday Paper, Post, 17 November 2021, excerpt:

In Victoria:

• Up to 500 protesters occupying the steps of Parliament forcibly ejected a journalist and issued violent threats, including one speaker who said of Premier Daniel Andrews, “I look forward to the day I get to see you dance on the end of a rope” (The Age);

• Video of the protesters shows them gathered around a wooden gallows on Monday chanting “Freedom”, “Traitor”, and “Hang Dan Andrews” while attempting to place the head of an inflatable doll of the premier through the noose;

• Four state Liberal MPs mingled with the protesters on Tuesday, including Bernie Finn, who last week shared a doctored picture of Andrews dressed as Adolf Hitler;

• Finn posted a selfie with the mob, which he described as “a couple of thousand of my closest friends”;

• The protests are against a bill that gives the premier and health minister the power to declare a pandemic and make public health orders, with debate extending late last night (7News);

• It is all but guaranteed to pass after the government made amendments to secure the support of three crossbench MPs, including that parliament will be given immediate ability to scrutinise any order (The Guardian).

In NSW:

• Premier Dominic Perrottet dumped a bill seeking to expand the state’s Covid-19 emergency powers until 2023 (The Australian);

• It had been approved by cabinet but faced opposition from Liberal backbenchers in a bitter partyroom backlash;

• Health Minister Brad Hazzard had been pushing to retain the powers to require quarantine or self-isolation for people exposed to Covid-19 (7News);

• Perrottet said he’d defer the decision on extending the powers until 2022.

COVID-19 Update: Northern NSW 16 November 2021

 

As at 8pm on 16 November 2021 there have now been 177 confirmed COVID-19 cases across the 7 local government arears within the Northern NSW Local Health District since 13 September 2021 when the Delta Variant Outbreal first reached Northern NSW reached .

A total of 64 of these confirmed COVID-19 infections (36.15 per cent of all Northern NSW cases since 13 September 2021) have been recorded in the first 16 days since NSW Premier & Liberal MP for Epping Dominic Perrottet opened up Northern NSW to Greater Sydney, interstate & overseas travellers. That is equivalent to 4 new COVID-19 infections a day.

CONFIRMED LOCALLY ACQUIRED COVID-19 CASE LOCATION BREAKDOWN IN NORTHEN NSW BETWEEN 13 SEPTEMBER & 16 NOVEMBER 2021:

Tweed Shire - 7 cases + 2 infections contracted elsewhere in NSW

Byron Bay - 7 cases + 2 confirmed infections within the LGA not entered into NNSWLHD records as these individuals were no longer in the region.

Ballina - 15 cases

Kyogle - 22 cases

Richmond Valley - 25 cases + 1 case confirmed on 10 Nov 2021 where infection was contracted overseas

Lismore City - 42 cases

Clarence Valley - 59 cases.

AS of 14 November 2021 the fully vaccinated rate for the 16 years old to 90 years and over resident population in Northern NSW was:

Tweed Shire – 83.3%

Byron Bay – 78.7%

Ballina – 92.6%

Kyogle – 84.9%

Richmond Valley – 86.4%

Lismore City – 86.2%

Clarence Valley – 89.2%

Queensland white shoe brigade onboard as owner of around 33.49ha of James Creek land has another run at overdevelopment

 

The Daily Examiner online, 12 November 2021:

The James Creek plan could see hundreds of residential lots opened up.

The current proposal at Lot 104 James Creek Road, James Creek was lodged by Madison Ruygrok through Kahuna No 1 Pty Ltd. If approved by Clarence Valley Council it would see 327 residential lots, one commercial lot and two open-space lots created.

According to civil engineering drawings prepared by Geolink in October this year, the majority of proposed sites would be between 600-799 square metres in size with the subdivision to be delivered in five stages with most to have two or three sub-stages.

It’s not the first time the site has raised the ire of nearby residents so it is expected there will be some strong opposition to the most recent plan.

In the March 2014 fiery remarks were hurled from the public gallery as James Creek residents watched Clarence Valley councillors agree to rezone the lot from primary production to general residential and medium density residential.

Then, in November 2020, multiple submissions were made opposing a development application that proposed 336 residential lots, four drainage reserves, one commercial lot and one public reserve.

However, residents against the development were relieved to discover that a month later, the application was withdrawn.

But despite their best efforts to thwart that development, a future of medium to high-density housing in this quiet, semi rural Lower Clarence suburb seems inevitable.

Over a decade ago, James Creek was targeted as an ideal spot for urban growth.

According to the Mid-North Coast Regional Strategy 2006-2013, James Creek was identified as an area for proposed future urban release, along with Gulmarrad and West Yamba.

Residents and members of the community have until December 3 to make a submission to Clarence Valley Council on the development application (number SUB2021/0042).

The owner & only listed shareholder of Kahuna No.1 Pty Ltd is Billabong founder Gordon Stanley Merchant of Tungan Qld and Madison Ruygrok is currently listed as a Town Planner with Place Design Group Pty Ltd of Fortitude Valley Qld.

Oddly in SUB2021/0042 - currently before Clarence Valley Council - it lists the developer of the land as The Trustee for MPD INVESTMENTS UNIT TRUST not Kahuna No1.

Presumably The Trustee for MPD Investments Unit Trust - an entity created in 2021 with an ABN registered in Queensland - is associated with Gordon Merchant.

Mr. Merchant's financial difficulties became known when the Australian Taxation Office reportedly penalised him around $13 million "after an audit by the tax office has ended with Mr Merchant being disqualified for “recklessly contravening” superannuation laws, as well as owing $45m in back tax".  

Administrative Decisions Tribunal April 2021 records show that Mr. Merchant lodged an Income Tax Objection in October 2020 and, he remains disqualified from acting as trustee or responsible officer of corporate trustees of superannuation entities, under subsections 126A(2) and 126A(3) of the SIS Act. 

One has to wonder if either Kahuna No 1, MPD Investments Pty Ltd or The Trustee for MPD Investments Unit Trust are financially secure enough to meet all the fees and charges associated with this development application and commencement of works. 

Or indeed if it is wise to pack an est. 818 persons into such a sardine tin housing estate on approx. 33.49ha between Maclean and Yamba in what is essentially still an agricultural area on a sensitive part of the flood plain where floodwaters are  liable to cut off access to & egress from farms and urban areas in a strong flooding event.

Northern Rivers couple Pat and John Edwards inducted into the Allen Strom Hall of Fame at the Nature Conservation Council’s 2021 NSW Environment Awards

 

Clarence Valley Independent, 10 November 2021:

John and Pat Edwards were inducted into the Allen Strom Hall of Fame at the Nature Conservation Council’s NSW Environment Awards over the weekend. Image: Contributed

Clarence Valley environmental defenders John and Pat Edwards were inducted into the Allen Strom Hall of Fame at the Nature Conservation Council’s NSW Environment Awards.

The awards, which were conducted via a Zoom meeting on Saturday November 6, “celebrate the outstanding commitment and achievement of campaigners, grassroots environmentalists and conservation groups across the state”.

“The Nature Conservation Council’s hall of fame was established in memory of the late Allen Strom’s untiring dedication to conservation and education in NSW,” the conservation council’s website states.

“Individuals for this award have been actively involved in the conservation movement for many years, have made a constant and invaluable contribution to the environment and have displayed qualities of integrity, reliability and commitment.”

Mr Edwards said he was honoured that he and his wife, Pat, were inducted into the hall of fame, however, he was a little shy about the attention.

“I always find these things embarrassing,” he said, “I’d rather be off in a corner doing my own thing, Pat is much the same.

“We do the things we do because we believe in them.

“We have five lovely grandchildren who deserve to experience a world like the one we grew up in – one of the things our generation has done is stuff it up for them; so whatever we can do to conserve nature is worth doing.”

Mr Edwards has been one of the people integral in conducting the Clarence Catchment Alliance’s ‘No Mines Clarence Valley’ campaign.....

Read the full article here.

Australia's Morrison Government appears to be living proof of that old adage, birds of a feather do flock together

IMAGE: Woodcut illustration of Vultures — Vector by ronjoe

Anyone who has been delving into Scott Morrison & Angus Taylor’s 98 page AUSTRALIA’S LONG-TERM EMISSIONS REDUCTION PLAN: Modelling and Analysis (Dept. of Industry, Science, Energy and Resources: DISER) document and, attempting to pin down where within its content examples of genuine modelling relying on science, fact-based assumptions and realistic projections, might have seen the name McKinsey & Company crop up on no less than 76 occasions.

That name rang a bell. Here is a brief background…….

The New York Times, 28 October 2021, p.6:

….a revolt has been brewing inside the world's most influential consulting firm, McKinsey & Company, over its support of the planet's biggest polluters.

More than 1,100 employees and counting have signed an open letter to the firm's top partners, urging them to disclose how much carbon their clients spew into the atmosphere. "The climate crisis is the defining issue of our generation," wrote the letter's authors, nearly a dozen McKinsey consultants. "Our positive impact in other realms will mean nothing if we do not act as our clients alter the earth irrevocably."

Several of the authors have resigned since the letter, which has never before been reported, came out last spring -- with one sending out a widely shared email that cited McKinsey's continued work with fossil fuel companies as a primary reason for his departure…..[my yellow highlighting]

The Hill, 27 October 2021:

... Since then, some of the letter's authors, who are consultants at McKinsey, have resigned from the company which is considered the world's most influential consulting firm, the Times reported.

Lawsuits, internal documents and interviews with four ex-McKinsey employees showed that McKinsey has advised at least 43 of the world's top 100 polluters in the past 50 years, per the Times.

The investigation by the Times found that those clients alone, excluding some of McKinsey's other clients who also contribute to pollution, accounted for over one-third of global carbon emissions in 2018.

At least one consultant who resigned specifically cited McKinsey's work with fossil fuel companies as his main reason for leaving. The Environmental Protection Agency has noted that "burning fossil fuels changes the climate more than any other human activity."

“Walking away from these sectors might appease absolutist critics,” D.J. Carella, a spokesman for McKinsey, said to the Times, adding that it "would do nothing to solve the climate challenge."…. [my yellow highlighting]

The New York Times, 6 November 2021:

A House committee has requested documents related to the firm's advice to drug makers and potential conflicts of interest with the F.D.A.

In a new assault on the global consulting giant McKinsey & Company, Congress on Friday started an investigation into the firm's role in the opioid crisis, sending a letter demanding records related to its "business practices, conflicts of interest and management standards."

The 12-page letter, which was sent by the House Committee on Oversight and Reform, asked for names of McKinsey clients in the health care industry as well as documents connected to its work with opioid manufacturers, distributors and retailers. The committee is also looking at how McKinsey's consulting for drugmakers may conflict with work it has done for the Food and Drug Administration.

By advising opioid makers and "the federal agency regulating their conduct," McKinsey "may have had a significant negative impact on Americans' health," the committee said.

The letter was signed by the committee's chairwoman, Representative Carolyn B. Maloney of New York, who requested that McKinsey produce the documents by Nov. 19. McKinsey has a policy of not identifying its clients or the advice it gives.

A spokesman for the firm on Friday said McKinsey had "received the committee's letter and will engage directly with the committee regarding their requests."

This year, McKinsey agreed to pay all 50 states more than $600 million to settle investigations into how it had helped "turbocharge" opioid sales, focusing mostly on its work with Purdue Pharma, the maker of OxyContin. McKinsey did not admit any wrongdoing.

The request on Friday follows a narrower one on Aug. 23, from a bipartisan group of six U.S. senators seeking records from the F.D.A. on its work with McKinsey at the same time that it was regulating opioid manufacturers, calling that relationship "a potential conflict of interest." The senators asked for more information about the firm's work with the F.D.A. division that approved certain classes of drugs, including prescription opioids.

OxyContin and similar painkillers can be addictive and prone to abuse. From 1999 to 2019, nearly 500,000 people in the United States died of opioid overdoses, according to the Centers for Disease Control and Prevention…..  [my yellow highlighting]

Reuters, 18 August 2021:

… McKinsey earlier this year reached agreements with state attorneys general to pay $641 million to resolve claims it helped drug manufacturers, including OxyContin maker Purdue Pharma, to design marketing plans and boost sales of painkillers.

Lawsuits by cities, counties and others followed, and Breyer now oversees at least 51 cases…. [my yellow highlighting]

The New York Times, 3 December 2019 - updated 24 February 2021:

Just days after he took office in 2017, President Trump set out to make good on his campaign pledge to halt illegal immigration. In a pair of executive orders, he ordered “all legally available resources” to be shifted to border detention facilities, and called for hiring 10,000 new immigration officers.

The logistical challenges were daunting, but as luck would have it, Immigration and Customs Enforcement already had a partner on its payroll: McKinsey & Company, an international consulting firm brought on under the Obama administration to help engineer an “organizational transformation” in the ICE division charged with deporting migrants who are in the United States unlawfully.

ICE quickly redirected McKinsey toward helping the agency figure out how to execute the White House’s clampdown on illegal immigration.

But the money-saving recommendations the consultants came up with made some career ICE workers uncomfortable. They proposed cuts in spending on food for migrants, as well as on medical care and supervision of detainees, according to interviews with people who worked on the project for both ICE and McKinsey and 1,500 pages of documents obtained from the agency after ProPublica filed a lawsuit under the Freedom of Information Act…. [my yellow highlighting]

The New York Times, 9 January 2019:

A judge in Virginia reopened a more than two-year-old case on Wednesday to consider accusations that the powerful consultancy McKinsey & Company had defrauded his court while advising a bankrupt coal company…..

McKinsey already faces similar claims of misconduct from Mr. Alix in the bankruptcy of another energy company, Westmoreland Coal, in Texas…. [my yellow highlighting]

Financial Times, 20 February 2019:

McKinsey has agreed to a $15m settlement with the US Department of Justice to resolve claims that the influential consulting firm failed to properly disclose conflicts of interest in bankruptcy cases over two decades.

The settlement on Tuesday is among the largest made by a bankruptcy professional accused of failing to comply with disclosure rules, according to the justice department, and adds to the mounting scrutiny of the professional services giant.... [my yellow highlighting]

Consulting.us, 4 December 2020:

The USTP [US Trustee Program] started the mediation with McKinsey in 2019 after noting that the consulting firm withheld “critical details” about connections to parties with a potential economic interest in the $1.4 billion Westmoreland bankruptcy case.

Westmoreland Coal emerged from Chapter 11 in June 2019. McKinsey, however, will forgo its fees for the advisory work performed, which the watchdog estimates at millions of dollars…. [my yellow highlighting]

"There is no country in the world which does climate change delay quite like Australia" and Prime Minister 'Scotty From Marketing' Morrison will double down on his refusal to act as the federal election draws closer

 

The Guardian, 13 November 2021:

The Australian prime minister, Scott Morrison, and the emissions reduction minister,  Angus Taylor. Photograph: Darren England/AAP

In April this year, Australia’s prime minister, Scott Morrison, said that “we will not achieve net zero in the cafes, dinner parties and wine bars of our inner cities”. This explains why he turned to the salt-of-the-Earth hard-workin’ rural folk at McKinsey – one of the biggest billion-dollar multinational consulting agencies on the planet – to produce the Australian government’s long-awaited modelling explaining the pathway to “net zero by 2050”.

In some parallel universe, the task may have gone to Australia’s chief science agency, the CSIRO (a former employer of mine). But it was revealed at Senate estimates a few weeks back that despite the CSIRO applying for the tender, the government rejected them and paid McKinsey $6m to model the changes Australian society must go through to decarbonise within 30 years. This choice makes sense in the context of recent leaks to the New York Times that revealed McKinsey has advised 43 of the 100 biggest corporate polluters, including “BP, Exxon Mobil, Gazprom and Saudi Aramco”. 1,100 of its employees signed an open letter pleading the consultancy reveal the carbon impacts of its clients.

We’ll never know exactly what the Australian government asked of the agency, but we finally know what got spat out the other end: an extremely weird document blatantly designed to protect the interests of Australia’s fossil fuel industries while creating the illusion of ambitious climate action. It was delayed until the final Friday of Cop26 to avoid embarrassment during the global deliberations, so we knew it’d be bad. But it’s worse than expected……

.... of the various pathways modelled in this document, Australia’s government picked the one that doesn’t even reach net zero by 2050. Their preferred scenario, “The Plan”, hits 2050 with a whopping 94 megatonnes of emissions remaining, or 215 if you exclude questionable offsets. They reached the point of 85% reduction in emissions, and very simply gave up. This ignored 15% is breezily labelled “further technology breakthroughs” in the document. It’s both amusingly honest and stunningly irresponsible.

As RenewEconomy’s Michael Mazengarb pointed out on Twitter, they also modelled a scenario in which emissions reductions go all the way to zero, albeit also reliant on offsets. That has a near-zero impact on economic growth, but it’s explicitly dismissed because this scenario also results in worse outcomes for the coal and gas mining industries.

Coal and gas sent overseas is responsible for roughly three times Australia’s annual domestic emissions. If the 72 coal projects and 44 oil and gas projects in Australia are realised, this will become six times Australia’s domestic emissions. They won’t all be realised, but you get an idea of their wide-eyed fantasies of growth. It’s this massive engine of planetary warming that the net zero plan ring-fences. Snarling at threats to fossil fuel companies feels like the only imperative this document takes seriously.

There is a reserved concession to the possibility that the coal export industry may shrink, with one graphic showing future coal exports dropping by 50%, by 2050. But in the same chart, gas exports increase by 13%. Both are laughable, considering the International Energy Agency’s “net zero by 2050” global scenario sees the total global consumption of both coal and gas drop to near-zero by 2050.

Part of why this discrepancy exists is that the IEA’s net zero scenario is limiting warming to 1.5C, but the government is targeting 2C, which allows for worse emissions into the future at the cost of more severe and catastrophic impacts of warming, particularly in the Global South. In fact 1.5C is not mentioned a single time in the hundreds of pages of the report. Like the 85%, it just breezily gives up part-way there.

Fundamentally, what McKinsey has laid out for us is that if you take the laziest, slowest and most bad-faith approach to climate action, it’s very cheap and not immediately disruptive. Take credit for technological advancements that occur in other countries, continue extracting and emitting in the interim, and slap it all with a counterfeit climate action label to avoid scrutiny. Being a tech free rider while worsening the problem you claim to be solving is a wonderfully tempting climate philosophy.

Of course, McKinsey’s modelling buries an important caveat in the guts of the PDF: the physical consequences of climate change are not included in their modelling. That means they count the benefits of falling back to slower action and worse emissions, and ignore the consequences.

In reality, we cannot ignore the consequences. Climate change is a physical problem in which the accumulation of greenhouse gases heats our habitat and hurts us, very badly. A tower of greasy tricks deployed to protect the fossil fuel industry changes nothing about the laws of atmospheric physics, and the pain we experience when governments don’t act fast enough…..

Truly, though, there is no country in the world that does climate delay quite like Australia. The hammy nationalism, the role of fantasy and trickery in its climate and energy rhetoric, and the total absence of shame in defending its role as a key cause of significant physical damage to Earth. It’s only going to escalate as the next federal election inches closer. Better strap in: it’s going to get even weirder. [my yellow highlighting]

Read the full article here.