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Second hearing of Woolworths vs Byron Shire Council Adjourned Again!

Second hearing of Woolworths vs Byron Shire Council Adjourned Again!

Woolworths construction site at Macksville NSW. Wonderful architecture eh!!

Byron Shire Council’s refusal of Woolworths’ poor quality Section 68 Application is being vindicated by a complex and drawn out Appeal process that will now involve at least three separate court hearings. The first hearing was held in September, in Mullumbimby and Ballina. The second hearing (in Sydney) was postponed from Wednesday 18 to Thursday 19 November because WWs were late yet again with information for the Appeal, which they had launched in August against Council’s July 2009 refusal of the on-site sewage application for a supermarket proposed in Station Street Mullumbimby.

A Brief History of Woolworths  On-site Sewerage Application  and Supermarket in Mullumbimby

A supermarket was approved on the site by the NSW Labor Minister for Planning in 2006, as part of its sale by Labor to Mallams, supermarket developers on the north coast of NSW. Woolworths bought the site with its approval but may have missed the fine print saying that only half the shop could be erected until the town sewage system had capacity a few years hence. In the interim, on-site sewage could be used to service the first half of the supermarket building. It would be located where the other half of the building is eventually to go.

WWs didn’t like this limitation  so they lodged a Section 96 Application to modify the DA and erect the full building now, with on-site sewage just going away like a headache. The DOP approved it, and coincidentally, a reasonable donation was made to the NSW Labor party (source:democracy for sale), and approval was granted in 2008 by planning minister, Christina Keneally. Unfortunately for WWs, the Local Government Act requires a “Section 68 Application” be approved before construction can commence. WWs applied for that in January 2009. Byron Shire Council once again expressed its concern about on-site sewage at the site. There were numerous exchanges and modifications and Council eventually refused the S.68 Application.

Endless Design Changes

Endless design changes have been proffered by WWs since the current Land & Environment (L&E) Court Appeal process began in September. A much higher level of sewage treatment, storage and monitoring is proposed than was refused by Council. Sewage irrigation volumes will be halved by re-using treated sewage effluent in the supermarket’s public toilets.

But what remains and what still really stinks is that, when irrigation fails in wet years on this small flat boggy site, sewage will be stored (up to 115,000 litres) in underground tanks. When those tanks fill, sewage will be removed by commercial tanker trucks. This is not just an emergency arrangement, it is proposed as part of the normal operation of the supermarket!

When are Experts Really Experts?

In the current adversarial Appeal setting, the two parties have very different estimates as to the number of times that “pump-out” will be required. WWs contend it will only be in extreme weather conditions - once every 3 years. Council’s court experts say that in extreme years pump-out will be once a month. Each pump-out involves two truck loads of sewage.

WWs’ expert admitted during the November hearing that he’d only been to the site once - after his first two of three reports on the site were published. Wow, how expert can you get?

Mullumbimby Woolworths Site Ground water Levels

Council’s expert on groundwater at the site had agreed with WWs’ expert, that groundwater was not an issue. Neither has been to the site except during the recent 2009 drought. One wonders why their joint report didn’t mention the preceding months of August having almost zero rainfall and September only 12mm. How un-expert can you get?

WWs’ expert claims the depth to the water-table is 1.5m and that drains east and west of the Station Street site prevent the water-table rising any higher than 700mm below ground level. Evidence and analysis by members of MCAN flew in the face of those claims. Their evidence was put before the court, both through verbal submissions at the Mullumbimby hearing and through written submissions made in 2008 to the Department of Planning’s Section 96 process. The submissions included photographs and observations gathered by Duncan Dey and Garry Scott when they investigated the soil profile on the site in July 2008. Duncan’s own expertise and the WWs expert’s lack of local knowledge where made clear to the Commissioner.

In July 2008 the MCANics found the water-table 50mm below ground level, not 1.5m or even 700mm. Residents of Mullumbimby may recall the site was saturated for that whole winter.

The Court Shows Extreme Patience with Woolworths Delays

Meanwhile, the L&E Court’s Commissioner continually demonstrates extreme patience and an apparent  willingness to help  WWs ‘over the line’ to their Section 68 approval. They now have until 4 December to provide a final sewage design and a Management Plan. And, judging by past performance, the Commissioner will be graceful when WWs are late.

How this works (it appears to be standard L&E Court ‘culture’) is that the Appeal provides WWs with a forum to re-negotiate a solution to their inadequate design, the one presented to Council. In fact, Council is paying its experts to sit in Court and help WWs design it. Experts are duty bound to serve the Court rather than those who pay their wages. When advocating for WWs, their expert appears to ignore this Court instruction but is never reigned in.

Byron Councils Refusal was Justified

MCAN cannot fathom why the Court doesn’t judge Council’s refusal as correct, and then advise WWs to submit a new Section 68 Application with a new design (produced at WWs’ cost). This would be a reasonable and simple approach but is not the ‘culture’ of the L&E Court. The Court system is skewed. It is no wonder the Appeal path is pursued so vigorously and so often by the big end of the development game.

In this case, Council’s barrister has advised the Court and hence WWs that it will file for costs incurred by WWs never being ready on time. The L&E Court does not deal with such matters so a new case will be prepared about Council’s costs in this Appeal. Costs of that preparation are not recoverable.

Sadly, the Appeal process is leading towards the experts agreeing that irrigation is possible. Council is incredibly well represented by barrister Tim Robertson, who informed the Court that once the on-site sewage design and management documents are complete the Commissioner must still consider Council’s opposition to pump-out, as expressed in its Policy. He must also consider whether the extremely sophisticated system management is sustainable. MCAN asks how a company that can’t afford check-out staff will ever manage a high-tech sewage system.

Will the On-Site Sewerage System Actually be Built?

MCAN also suggests WWs don’t actually intend to build an on-site sewage system that has already become ludicrously complex, dependant on higher and higher levels of expertise to manage and an ever-increasing price tag to build. MCAN suggests WWs game plan is that they just want to start the building ASAP and re-negotiate the sewage issues later. Without a Section 68 (sewage) approval, construction can not commence. A very similar game plan successfully allowed Byron@Byron to jump the Byron township’s sewage moratorium.

MCANics Luis Cristia, Garry Scott and Duncan Dey attended the November hearing in Sydney. A presence in the Court is extremely valuable. Knowledge on the case is growing. The arguments are clear and Council’s case is strong.

Despite that, approval may still be granted. Council has prepared Draft Consent Conditions “just in case”. It is imperative that the Conditions prohibit or at least limit off-site tankering. WWs must be forced to behave as their expert is promising in Court, with only one pump-out tanker event every 3 years. That “wet year” must be defined and its rainfall quantified in the Conditions. If it is left to WWs, there’ll be tankering every month - no need for irrigation at all.

What can concerned citizens of Mullumbimby do?

  1. if you are in Sydney for Christmas, witness the Court proceedings on 23 December.

  2. get ready for a new Section 96 Application in 2010. This S.68 Approval require tree removal. WWs have to go back to the Minister for Planning for that approval in 2010.

On their way south, the three MCANics came across what WWs are doing in the small village of Macksville. Tasteful architecture isn’t it:


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