Here’s some great news.
Last week, as we were preparing for a resumption of the final Trial Hearing on the motocross appeal, Drywound Pty Ltd's solicitor filed an application with the court to be taken off the record as its solicitor because he (and the barristers) were owed a considerable amount of money and the developer had not been returning his calls or emails for over a month (this was accompanied by a 63 page affidavit detailing the Drywound's debts to its lawyers and experts - see post here).
Late on Friday Colby Steer (sole Director of Drywound Pty Ltd) sent the parties to the appeal copies of a “letter of demand” that he had sent to the Council for payment of $501,057 which he claimed to have spent on legal and professional costs, arguing that the Council had intially expressed “tremendous support and encouragement” at the initial meeting in 2014, but had been putting difficulties in his way since then.
The tone and content of his letter suggest that he has not adequately understood the nature of the Development Application or Planning and Environment Court Appeal processes. However, in fairness, it is also quite possibly a factor contributing to his current problems that, as an "outsider" in the Lockyer Valley, he might not have recognised in time that any support, encouragement and assurances he had received from the then Mayor of the LVR Council would not necessarily outlast his untimely demise.
On the morning of Monday 23rd of January Mr Steer was in the Planning and Environment Court (self-represented) when it met to resume the Trial Hearing. He advised the Judge that he wanted to withdraw from the Appeal and had no intention of pursuing the Trial Hearing. On hearing this, the Judge dismissed his Appeal against the Council’s decision to refuse the application for a material change of use to allow the establishment of a motocross facility on the land in Adare Road.
It's over.
The Council’s decision to refuse the Development Application stands.
The voices of the 232 objecting submitters to the Development Application have prevailed.
This was always an inappropriate development for the proposed location, and that would have been recognised in the Trail Hearing had it gone ahead. Drywound's withdrawal has saved the community from yet more unnecessary expense in fighting an appeal that should not have been launched in the first place.
Showing posts with label Lockyer Valley Regional Council. Show all posts
Showing posts with label Lockyer Valley Regional Council. Show all posts
Wednesday, 25 January 2017
Saturday, 30 July 2016
Addressing misconceptions about the approval and appeal process
There is currently a lot of talk on the closed Facebook page group Memories of Gatton about the proposed motocross facility and the opposition to it. Unfortunately a lot of what is being said is based on misunderstandings or misinformation.
I think it's time to address some of the claims being made.
The advertising of the proposal in late November 2014 led to 232 objecting submissions being lodged with the Lockyer Valley Regional Council by the cut-off date in mid-December. This was an incredible response, given that because of the way it was advertised the proposal did not begin to be known by more than the immediate neighbours until there were only 10 days of the public notification process remaining. Had the process gone on longer there would have been many more objecting submissions.
Those objecting submissions will be considered by the Judge of the Planning and Environment Court who will decide whether or not the appeal should be allowed.
Only two supporting submissions were made.
When the developer (technically Drywound Pty Ltd, but it's sole shareholder is Colby Steer) lodged an Appeal in the Planning and Environment Court against the Council's unanimous refusal of the development application, the Lockyer Valley Regional Council was the "Respondent" i.e. they formally opposed the appeal which sought to overturn their decision.
Six members of the community nominated to become "Co-respondents" to the appeal. That is, they agreed to respond alongside the Council, to oppose the appeal. In effect, they stand as the representatives of the much larger group of those in the community opposing the motocross facility.
This is a particularly brave stance for ordinary people like retirees, farmers, and small business owners, because in 2012 the LNP State government overturned a long-standing principle that people who stand up for their rights in town planning appeals should only have to pay their own costs. The LNP changed the law so that there is the potential for co-respondents to be required to pay the costs of the appellant. Had this not been the case there would likely have been several tens of co-respondents, as in the Bella Creek moto park appeal in the Gympie Regional Council area some years ago, prior to the LNP changes. By the way, like many motocross proposals these days the Bella Creek proposal did not go ahead.
In addition, a local community group also elected to become a Co-respondent in the appeal.
None of this changes the fact that the main respondent to the appeal is the Council, acting on behalf of the Lockyer Valley community, because they made a decision to refuse the application based on what was in the best interests of the whole community, not just the wishes of a single-interest group.
Luckily, because there is so much opposition to the proposed motocross facility, the community has been willing to assist with the costs and a large number of people (including the co-respondents) have contributed several tens of thousands of dollars.
As the number of objecting submissions showed, the proposal is opposed by a community, not by six individuals.
That company is not registered to an address in the Lockyer Valley Regional Council area.
The sole shareholder does not live in the Lockyer Valley Region and does not own any operating business in the area.
That the Council took nearly six months to assess and evaluate the proposal shows that they did not make their decision in haste or carelessly. Further, the Council's decision was unanimous. It wasn't a "near thing" - every Councillor was opposed to the proposal. Not only that, the Council's planning staff, who submitted their report to the Council meeting where the decision was made, recommended, for a wide variety of reasons, that the development not be approved.
Thus, the situation is this:
It's clearly not those opposing the proposal who have been the cause of the Council's expenses in fighting this appeal.
To get a more digestible version of the reasons you could go to the minutes of the Council meeting where the application was refused and read the staff report which recommended against approval.
You could also have gone into the Council office any time in the nearly six months when the application was under consideration and had a look at the submissions from the 232 people who don't want this development to go ahead.
Or to get a feel for the reality of motocross impacts you could have a look at some of the heartfelt comments of people who have had to live with motocross operations in their area. There's more here and here.
A lot of these impacts on people living with motocross activities have to do with noise. It often isn't until people have to live with motocross noise that they realise that the problem isn't just the loudness. Check this out for an overview of the health impacts of motocross noise.
I think it's time to address some of the claims being made.
Only six people are opposing the motocross facility
232 people formally opposed the proposal during the Development Application process.The advertising of the proposal in late November 2014 led to 232 objecting submissions being lodged with the Lockyer Valley Regional Council by the cut-off date in mid-December. This was an incredible response, given that because of the way it was advertised the proposal did not begin to be known by more than the immediate neighbours until there were only 10 days of the public notification process remaining. Had the process gone on longer there would have been many more objecting submissions.
Those objecting submissions will be considered by the Judge of the Planning and Environment Court who will decide whether or not the appeal should be allowed.
Only two supporting submissions were made.
When the developer (technically Drywound Pty Ltd, but it's sole shareholder is Colby Steer) lodged an Appeal in the Planning and Environment Court against the Council's unanimous refusal of the development application, the Lockyer Valley Regional Council was the "Respondent" i.e. they formally opposed the appeal which sought to overturn their decision.
Six members of the community nominated to become "Co-respondents" to the appeal. That is, they agreed to respond alongside the Council, to oppose the appeal. In effect, they stand as the representatives of the much larger group of those in the community opposing the motocross facility.
This is a particularly brave stance for ordinary people like retirees, farmers, and small business owners, because in 2012 the LNP State government overturned a long-standing principle that people who stand up for their rights in town planning appeals should only have to pay their own costs. The LNP changed the law so that there is the potential for co-respondents to be required to pay the costs of the appellant. Had this not been the case there would likely have been several tens of co-respondents, as in the Bella Creek moto park appeal in the Gympie Regional Council area some years ago, prior to the LNP changes. By the way, like many motocross proposals these days the Bella Creek proposal did not go ahead.
In addition, a local community group also elected to become a Co-respondent in the appeal.
None of this changes the fact that the main respondent to the appeal is the Council, acting on behalf of the Lockyer Valley community, because they made a decision to refuse the application based on what was in the best interests of the whole community, not just the wishes of a single-interest group.
"The six complainants have hardly spent a dime..."
The six co-respondents have to raise the money to pay their solicitor, barrister, noise expert, koala ecology expert, and town planning expert. As you would expect, this is an expensive proposition.Luckily, because there is so much opposition to the proposed motocross facility, the community has been willing to assist with the costs and a large number of people (including the co-respondents) have contributed several tens of thousands of dollars.
As the number of objecting submissions showed, the proposal is opposed by a community, not by six individuals.
The motocross proposal comes from a "locally owned and operated business"
The proposal comes from a company with only one shareholder.That company is not registered to an address in the Lockyer Valley Regional Council area.
The sole shareholder does not live in the Lockyer Valley Region and does not own any operating business in the area.
Those opposing the motocross proposal are putting a financial burden on the community by way of Council's legal costs
Once someone lodges an appeal, the Council has no option but to oppose an appeal against their properly made decision.That the Council took nearly six months to assess and evaluate the proposal shows that they did not make their decision in haste or carelessly. Further, the Council's decision was unanimous. It wasn't a "near thing" - every Councillor was opposed to the proposal. Not only that, the Council's planning staff, who submitted their report to the Council meeting where the decision was made, recommended, for a wide variety of reasons, that the development not be approved.
Thus, the situation is this:
- a record number of objecting submissions were received by the Council;
- the Council planning staff recommended for a range of reasons that the development not be approved; and
- every Councillor voted to refuse the development application;
It's clearly not those opposing the proposal who have been the cause of the Council's expenses in fighting this appeal.
People don't understand why there is opposition to the motocross proposal
Colby Steer has posted the Council's grounds for continuing to oppose the appeal on the Memories of Gatton website. Admittedly those grounds are framed in difficult to understand town planning terms, but that is because the application was made under the Gatton Planning Scheme which uses the same language.To get a more digestible version of the reasons you could go to the minutes of the Council meeting where the application was refused and read the staff report which recommended against approval.
You could also have gone into the Council office any time in the nearly six months when the application was under consideration and had a look at the submissions from the 232 people who don't want this development to go ahead.
Or to get a feel for the reality of motocross impacts you could have a look at some of the heartfelt comments of people who have had to live with motocross operations in their area. There's more here and here.
A lot of these impacts on people living with motocross activities have to do with noise. It often isn't until people have to live with motocross noise that they realise that the problem isn't just the loudness. Check this out for an overview of the health impacts of motocross noise.
Progress with the Adare motocross facility Appeal
It's more than one year since the Lockyer Valley Regional Councillors unanimously refused permission for the motocross training facility at Adare, citing a range of grounds based on non-compliance with the Gatton Planning Scheme.
This followed a public notification process in which 232 objecting submissions were received and only 2 supporting submissions.
On 3 July 2015 the applicant (Drywound Pty Ltd - sole shareholder Colby Steer) lodged an appeal in the Planning and Environment Court. From that date, under the Court rules he had six weeks to progress the appeal. In fact it was around four months before he took any further action. That delay was a foretaste of the way he was to conduct the appeal until now.
I'll skip the intervening stages until on 3 March 2016 the Judge in the Planning and Environment Court issued a Court Order setting out the substantive stages in the appeal process, leading to a Court Hearing in September this year if no agreement on a mutually acceptable outcome had been found before that.
First there was a Mediation Meeting in mid-April to see whether was any commonly agreed outcome possible at that stage. Unsurprisingly, there wasn't.
The next two stages in the process were to be the nomination of experts by the parties in relevant specialist fields. This was to be done by 29 April. By that date the Council had nominated experts in the fields of noise, ecology and town planning, and the group of six Co-respondents who are being assisted with fundraising by Lockyer Community Action Inc. had nominated experts in the fields of noise, koala ecology and town planning.
Drywound had not nominated any experts by the deadline.
The next deadline was to be meetings of the experts in the various fields, which were to be convened by 13 May (apart from town planning, which group meets later and has access to the reports of the other groups).
As of 13 May, Drywound had still not nominated any experts, so the expert group meetings had not been able to be held.
For a man who has apparently been so keen to get his motocross facility up and running, Colby Steer has been remarkably casual about pursuing the appeal process.
In the 49 weeks from when Colby Steer lodged his appeal until 12 June this year, more than 34 weeks had been wasted as a result of his non-compliance with deadlines set in Court Orders and the Planning and Environment Court's Practice Directions.
That amounts to 70% of the elapsed time. Keen to get the track operational? It doesn't look like it.
In commenting on his review of the progress of the Appeal the Judge commented that if an application were to be made for dismissal of the Appeal on the grounds of further delays, he would be inclined to look favourably on it.
The Appeal is now in the stage of Joint Expert Group meetings where the experts nominated by the various parties meet in "subject" groups (e.g. noise, ecology, town planning) to determine what they are able to agree on about the proposed development and where their areas of disagreement lie.
This followed a public notification process in which 232 objecting submissions were received and only 2 supporting submissions.
On 3 July 2015 the applicant (Drywound Pty Ltd - sole shareholder Colby Steer) lodged an appeal in the Planning and Environment Court. From that date, under the Court rules he had six weeks to progress the appeal. In fact it was around four months before he took any further action. That delay was a foretaste of the way he was to conduct the appeal until now.
I'll skip the intervening stages until on 3 March 2016 the Judge in the Planning and Environment Court issued a Court Order setting out the substantive stages in the appeal process, leading to a Court Hearing in September this year if no agreement on a mutually acceptable outcome had been found before that.
First there was a Mediation Meeting in mid-April to see whether was any commonly agreed outcome possible at that stage. Unsurprisingly, there wasn't.
The next two stages in the process were to be the nomination of experts by the parties in relevant specialist fields. This was to be done by 29 April. By that date the Council had nominated experts in the fields of noise, ecology and town planning, and the group of six Co-respondents who are being assisted with fundraising by Lockyer Community Action Inc. had nominated experts in the fields of noise, koala ecology and town planning.
Drywound had not nominated any experts by the deadline.
The next deadline was to be meetings of the experts in the various fields, which were to be convened by 13 May (apart from town planning, which group meets later and has access to the reports of the other groups).
As of 13 May, Drywound had still not nominated any experts, so the expert group meetings had not been able to be held.
For a man who has apparently been so keen to get his motocross facility up and running, Colby Steer has been remarkably casual about pursuing the appeal process.
In the 49 weeks from when Colby Steer lodged his appeal until 12 June this year, more than 34 weeks had been wasted as a result of his non-compliance with deadlines set in Court Orders and the Planning and Environment Court's Practice Directions.
That amounts to 70% of the elapsed time. Keen to get the track operational? It doesn't look like it.
In commenting on his review of the progress of the Appeal the Judge commented that if an application were to be made for dismissal of the Appeal on the grounds of further delays, he would be inclined to look favourably on it.
The Appeal is now in the stage of Joint Expert Group meetings where the experts nominated by the various parties meet in "subject" groups (e.g. noise, ecology, town planning) to determine what they are able to agree on about the proposed development and where their areas of disagreement lie.
Monday, 25 May 2015
Council meeting on Wednesday 27 May 2015
UPDATE - 12.15pm Tuesday 26 May
Confirmation from Council - the Motocross application will be decided on Wed 27th
27 May, starting at 10.00am
upstairs in the Council Offices in Railway Street Gatton
Please be there - numbers count. Get there early to secure a seat.
NOTE: There will be presentations by Lockyer Community Action and the Applicant at the meeting.
+++++
Monday, 4 May 2015
The offical view on Councillors talking with constituents about Development Applications - or anything else
An LVRC ratepayer has written to the Deputy Mayor, Tanya Milligan, seeking clarification of the legal basis for suggestions that Councillors should be careful in having contacts with constituents who oppose a development application as it may cause a conflict of interest or an impression of bias that may interfere with the decision making process of Councillors.
I referred to this in my last post here and gave the example of the role and views of one Brisbane City Councillor as a contrast with the above view.
A reply to the ratepayer's letter has now been received from the Lockyer Valley Regional Council CEO - this is normal practice in the LVRC when a Councillor believes that they are being asked for the Council's position on something rather than their own opinion. Just why a Councillor can't be trusted to convey the Council's position on something when it is an apparently clear and long standing policy (at least since the early days of this Council's tenure) is unclear.
Anyway ... the CEO's letter is enlightening, not least because it does not even attempt to provide any legal or policy basis for the stance. Here it is:
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The letter contains some useful guidelines and principles worth summarising.
There are some points in the letter with which I strongly disagree, but these concerns in no way detract from the significance of having the LVRC CEO's clarification of the Councillors' duties and rights regarding their contacts with constituents.
First, it is wrong to state that Councillors are required to be "neutral in the decision making process". Councillors can be red-hot opposed to a development application or fervently in favour of it without this giving any cause for concern. What the law requires is impartiality. Councillors cannot favour one outcome or another without valid reasons - but there is no requirement that they not be strongly committed to their arguments for one position or the other. The words "neutral" and "neutrality" do not appear in the Local Government Act.
Second, it is highly unlikely that there would be causal link between a lack of impartiality in decision making and a conflict of interest on the Councillor's part. Impartiality has to do with even-handedness in approaching a decision, and weighing up both sides of the argument fairly. Conflict of interest has to do with whether or not the Councillor has some personal, family or business interest which could be advantaged by a decision going in a particular direction. One can be lacking in impartiality without having any vested interest in the outcome - for example if one has taken a dislike to one party and lets that influence ones willingness to engage or the way one votes in a council meeting. (On the other hand, a conflict of interest can, of course, lead to a lack of impartiality, but that is not the issue here.)
It would require a stretch of the imagination to even suggest that a conflict of interest which did not exist before could arise from a Councillor consulting with his or her constituents to find out their views and concerns in relation to an issue. Yet, this conflict of interest stick has been used to dissuade Councillors from consulting with the community, and vice versa.
It goes without saying that Councillors should consult with their constituents, whether as individuals or as members of a community group. They cannot fulfil their duties, including those described at 4(2)(c) and 12(1) of the Local Government Act, without such consultation. And, of course, in this context "consult" includes both actively seeking out the views and concerns of residents, and being available to hear those views and concerns when contacted by residents.
With regard to Councillors and community groups, the Local Government Act, at Section 173(3) specifically says: "A councillor does not have a conflict of interest in a matter merely because of an engagement with a community group ... undertaken by the councillor in his or her capacity as a councillor".
I sincerely hope that this letter from the CEO setting out the guidelines (as well as, of course, better awareness of the relevant parts of the Local Government Act, including particularly Sections 4, 12(1-3), and 173) will clear the way for both Councillors and community members to engage in necessary dialogue on important issues in the government of the Lockyer Valley Region - and not just on issues restricted to the Adare motocross proposal.
I referred to this in my last post here and gave the example of the role and views of one Brisbane City Councillor as a contrast with the above view.
A reply to the ratepayer's letter has now been received from the Lockyer Valley Regional Council CEO - this is normal practice in the LVRC when a Councillor believes that they are being asked for the Council's position on something rather than their own opinion. Just why a Councillor can't be trusted to convey the Council's position on something when it is an apparently clear and long standing policy (at least since the early days of this Council's tenure) is unclear.
Anyway ... the CEO's letter is enlightening, not least because it does not even attempt to provide any legal or policy basis for the stance. Here it is:
The letter contains some useful guidelines and principles worth summarising.
- Under the Local Government Act 2009 Councillors are required to effectively consult and liaise with their community members, ratepayers and residents.
- Councillors have a responsibility to be informed of matters requiring a decision of Council.
- Councillors who feel that attending a meeting with their constituents opposed to a development application would be beneficial in gathering further information that would assist in making their decision on the proposal may do so.
- In reaching their decision Councillors need to give due consideration to: the matters put forward by the Applicant in respect of the proposal; submissions received from submitters; the detailed assessment report provided by the Council's officers; and information gathered during the decision making process.
There are some points in the letter with which I strongly disagree, but these concerns in no way detract from the significance of having the LVRC CEO's clarification of the Councillors' duties and rights regarding their contacts with constituents.
First, it is wrong to state that Councillors are required to be "neutral in the decision making process". Councillors can be red-hot opposed to a development application or fervently in favour of it without this giving any cause for concern. What the law requires is impartiality. Councillors cannot favour one outcome or another without valid reasons - but there is no requirement that they not be strongly committed to their arguments for one position or the other. The words "neutral" and "neutrality" do not appear in the Local Government Act.
Second, it is highly unlikely that there would be causal link between a lack of impartiality in decision making and a conflict of interest on the Councillor's part. Impartiality has to do with even-handedness in approaching a decision, and weighing up both sides of the argument fairly. Conflict of interest has to do with whether or not the Councillor has some personal, family or business interest which could be advantaged by a decision going in a particular direction. One can be lacking in impartiality without having any vested interest in the outcome - for example if one has taken a dislike to one party and lets that influence ones willingness to engage or the way one votes in a council meeting. (On the other hand, a conflict of interest can, of course, lead to a lack of impartiality, but that is not the issue here.)
It would require a stretch of the imagination to even suggest that a conflict of interest which did not exist before could arise from a Councillor consulting with his or her constituents to find out their views and concerns in relation to an issue. Yet, this conflict of interest stick has been used to dissuade Councillors from consulting with the community, and vice versa.
It goes without saying that Councillors should consult with their constituents, whether as individuals or as members of a community group. They cannot fulfil their duties, including those described at 4(2)(c) and 12(1) of the Local Government Act, without such consultation. And, of course, in this context "consult" includes both actively seeking out the views and concerns of residents, and being available to hear those views and concerns when contacted by residents.
With regard to Councillors and community groups, the Local Government Act, at Section 173(3) specifically says: "A councillor does not have a conflict of interest in a matter merely because of an engagement with a community group ... undertaken by the councillor in his or her capacity as a councillor".
I sincerely hope that this letter from the CEO setting out the guidelines (as well as, of course, better awareness of the relevant parts of the Local Government Act, including particularly Sections 4, 12(1-3), and 173) will clear the way for both Councillors and community members to engage in necessary dialogue on important issues in the government of the Lockyer Valley Region - and not just on issues restricted to the Adare motocross proposal.
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