A last minute question by councillor Russell Fitzpatrick at Wednesday’s council meeting, could have saved council several thousand dollars in legal fees.
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“Were councillors aware that following the resolution to defer decision on the proposed Pambula supermarket, council could end up in the Land and Environment Court,” Cr Fitzpatrick asked.
And from the reactions of some, clearly they were not aware.
The Pambula supermarket DA for the corner of Merimbola and Bullara Streets, had been addressed earlier in the council session on Wednesday, July 20, and once again had been deferred. At the meeting on June 8 it had been deferred to allow the developer, Rodney Thompson to come up with an alternative route for semi-trailers that would not conflict with customer traffic.
At that stage council staff had been happy for consent to be given subject to an appropriate traffic redesign being submitted to council.
However not all councillors were as certain of the situation as others and the matter was deferred for a site visit by councillors with Crs McBain, Hughes, Tapscott, Seckold, Mawhinney and Taylor voting in favour of the visit and Crs Fitzpatrick and Allen voting against.
Given the amount of interest the proposal had generated some found it surprising that not all councillors had made themselves familiar with the site and its layout.
When the matter returned on July 20, council received two deputations from nearby residents both concerned about floods and the effect of filling some parts of the site, in the event of severe weather.
Council staff said that storm impacts were not significant and that in fact the stormwater management system would capture water taking it away from surrounding properties.
Although Crs Taylor, Fitzpatrick and Allen were all for dealing with the matter on the day, and council staff had recommended approval, the majority of councillors agreed to defer a decision for council staff to investigate storm water impacts further. Councillors Kristy McBain and Michael Britten were absent due to their pecuniary interest in the matter.
However the intervening council election and “quiet period” for the month preceding the election, will mean that the Pambula supermarket DA will not come before council until October, a matter confirmed by the general manager, Leanne Barnes.
Cr Fitzpatrick said that given the time lapse, the developer could consider the matter refused and could take it to the Land and Environment Court.
Planning staff member, Keith Tull, agreed.
“Under the legislation there is an opportunity for the applicant to seek court action. The commissioner of the court would consider the report to council,” Mr Tull said.
He explained that although staff could prepare a report, legal services would be needed.
More critically though, given the staff recommendations on several occasions Mr Tull said: “I do not have a position to take to court.”
Councillor Keith Hughes wanted to take the risk, continue with the deferral and get more information about storm impacts.
Councillor Sharon Tapscott who had proposed the deferral said that it was all in the timing and that if council didn’t have the election it wouldn’t have been in this position.
“I didn’t know about these concerns until today. I was unaware that my deferral had a different meaning; I was flying blind. I don’t know what you want us do,” Cr Tapscott said.
After Cr Taylor suggested the standing orders be suspended to allow for ease of discussion, Ms Barnes said that council could look at a resolution to come back August 10 with a special request to the Minister for Local Government to allow council to discuss the matter.
Cr Fitzpatrick said that although council would still have exceeded the time frame for consideration of the DA, at least the developer would have a time frame.
Councillors unanimously agreed to defer the matter until August 10 to allow staff to prepare answers to questions raised in the deputation and in the meantime the general manager will seek dispensation from Minister for Local Government to deal with the matter on that day.
It is likely the council meeting will be moved to 10am to ensure any decision is made prior to the 12 noon start that day of caretaker mode for council.
