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.

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:

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.

Of course Councillors who have properly informed themselves as to their role and responsibilities under the Local Government Act (and any community members who take an interest in how their local government works) are already aware of these points and more.

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.

Does the total number of objecting submissions matter?

There were 232 objecting submissions to the Development Application for the motocross facility at Adare.  I doubt that any planning application in the Lockyer Valley Regional Council area has given rise to as many objections.

I've lost count of the number of people who have asked me questions along the lines of: "Why is it taking the Council so long to deal with this application if there were 232 objections?".

I can understand the the Planning Department is making sure that they do a thorough job of assessing all relevant aspects of the application and the submissions received, and I would not want them to do anything else.  Good governance is in all our interests.

Does the total number of objecting submissions matter?

In its reasons for refusing the Bella Creek Multi Sports Park (i.e. motocross and 4-WD) development application the Gympie Regional Council included the following:

Having regard to the number of objections and concerns expressed in the objections, Council considers that the proposal is contrary to community expectations and not in the public interest.

In case you are wondering, there were 179 objecting submissions to that application.  (The proponent later made a revised development application which was again refused.)

One of the other reasons given for the refusal that is relevant to the Adare motocross proposal was that:

The development will result in an unacceptable impact on rural character and amenity of the area.

Clearly an issue for anyone who lives in or has visited the Adare/Vinegar Hill area.

The property below is less than one kilometre* from the proposed motocross property and was photographed from a neighbouring property - pretty much fits the description of rural amenity in the quote from the Strategic Framework for the new LVRC Planning Scheme (which may be released for public comment at the end of April).

* I use distances from the edge of the proposed motocross property rather than from the Stage 1 track because the proponent has not given any indication of where the four additional Stage 2 tracks will be built.  It seems likely due to considerations of vegetation, slope and conservation values that they will be in the area closest to surrounding properties.