The gap mattered because the three possibilities were very different. An appeal pursued and lost, an appeal discontinued, and a deadline quietly allowed to lapse are not the same event, and only one of them involves a decision anybody made. It was the middle one, and it was made in public, in a meeting, by a recorded vote.
The reason it reads as a gap is that the decision went to the chamber and not to the news page. That is not a failure of the record. It is a reminder that on a matter like this the business papers are the record, and the news feed is a summary of whatever a council chooses to summarise.
What the meeting did
Item 14.1 at the ordinary meeting of 22 October 2024 was titled Iron Gates
Development: Notice of Intention to Appeal
. Three members of the public spoke first,
and all three urged council to appeal: Jocelyn Reese for Stop Iron Gates Incorporated, Doug
Luke, and Dr Richard Gates for Evans Head Residents for Sustainable Development Incorporated.
Dr Gates asked council to seek an extension of time from the court so further questions of law
could be considered.
Councillors then split twice. An amendment moved by Cr Robert Mustow and seconded by Cr Robert Hayes carried five votes to two and became the motion. A foreshadowed motion from Cr Lyndall Murray, which would have had council seek an extension of time and brief a third party to review the advice, was overtaken. The final resolution, numbered 221024/7, carried six votes to one, with Cr Murray against.
Council resolved that, having regard to the considerations before it, and
noting that a successful appeal of the matter will not preclude future development from
occurring on the site
, it determined not to pursue this matter in the Court of Appeal
and advises the Court of this decision
.
The advice, and the four questions
Council commissioned an opinion from J E Lazarus SC. The constraint he
worked under is the heart of it: an appeal from the Land and Environment Court to the Court of
Appeal under section 57(1) of the Land and Environment Court Act 1979 lies only on a question
of law. As the report puts it, Merit issues relating to the judgement of Preston CJ cannot
be considered by the Court of Appeal.
Whether the development is a good idea was no longer
a question anyone could ask.
Within that constraint he identified four questions that might have been amenable to appeal if error could be shown.
| Question | What it concerned |
|---|---|
| Unauthorised works | Whether the application could validly rely on works already built without authorisation and not proposed to be removed |
| Designated development | Whether the proposal should have been characterised as designated development |
| Koala SEPP | Which koala planning policy applied, and what follows from applying the correct one |
| Bioswale condition | Whether the court had power to impose a condition requiring dedication of land containing bioswales, described as a decision of a financial nature |
On the first, the report records that Preston CJ had held there was no legal principle
preventing consent being sought for development that would amend works that were unlawful for
future use, and that Mr Lazarus did not discern any error
in that approach. On the
second, council had argued the proposal was designated development because one lot was to be
subdivided to create residential lots south of an area identified as coastal wetlands. Preston
CJ rejected that for three separate reasons, and the advice was that council would need to
defeat all three, with no error perceived in any of them. The report describes the koala policy
question as complex.
What it had cost, and what an appeal would have cost
The report is unusually direct about money, and this is the part most useful to a ratepayer.
| Item | Amount |
|---|---|
| Direct costs responding to the court action, to that date | In excess of $350,000 |
| Additional staff time and expenses | $80,000 |
| Estimated direct cost of an appeal | In the range of $80,000 |
| Possible liability for the other side’s costs if unsuccessful | Could reasonably be expected to exceed $100,000 |
| Report’s summary of appeal exposure | Up to $200,000 |
So the choice councillors faced was to spend up to another $200,000 on an appeal that senior counsel had told them was unlikely to succeed, in a matter that had already cost more than $430,000, and where success would still not have prevented development on the site.
The part that is still live
Cr Mustow’s amendment added a seventh clause that has nothing to do with the appeal
and everything to do with the next twenty years. Council resolved to investigate options to
levy charges covering all costs associated with establishing and constructing the development
from the developer, and rates or charges on future residents for ongoing maintenance
including the bioswales
.
That connects directly to the fourth question of law. The report notes the evidence in the court case was that council was concerned about the cost of maintaining the bioswales and did not have the equipment to clean them. Council lost the argument about whether it could be made to take the land, and in the same meeting resolved to look at making the development pay for the upkeep. We have not established what came of that investigation, and it is the obvious thing to ask next.
Our view, labelled as such
On the documents, the decision looks like a reasonable one made properly. Council took senior counsel’s advice, published the costs, heard from three residents who wanted the opposite outcome, debated it, and recorded who voted which way. That is the process working.
The criticism worth making is narrower and is about communication rather than judgement. Council said in August 2024 that it would keep the community updated where the legal process allowed. The legal process plainly allowed this: the decision was made in open session and minuted in full. It simply never appeared as a news item, so for nearly two years the only version of Iron Gates a resident could easily find ended with council reserving its rights. A decision not to spend $200,000 of ratepayers’ money, taken against organised local opposition, is exactly the kind of thing worth a paragraph on the website.
How we sourced this
Everything here comes from two documents published by Richmond Valley Council for its ordinary meeting of 22 October 2024: the agenda, in which item 14.1 contains the report, the costs and the summary of the legal advice, and the unconfirmed minutes, which record the public addresses, the amendment, the foreshadowed motion, the resolution and both votes. Both were downloaded and read on 16 August 2026 and are kept on file.
Our arithmetic. The “more than $430,000” figure is our addition of the report’s two stated amounts, direct costs in excess of $350,000 and a further $80,000 in staff time and expenses. Every other figure is quoted as the report states it.
What we have not done. We have not read the Memorandum of Advice itself, which the agenda lists as an attachment; our account of it is the report’s summary of it. We have not read the judgment of Preston CJ, only the report’s description of it. We have not established what became of the resolution to investigate cost recovery from the developer and future residents, and we make no claim about it. We have not contacted council, the applicant or any of the residents who spoke, and we would publish a response. The minutes we relied on are marked unconfirmed, meaning they had not yet been adopted at the following meeting when published; we have not checked whether they were later amended.
On the parties. The litigation concluded in 2024 and the development is proceeding under consent, so nothing here concerns an active case. The applicant is named as the court and council name it. Nothing in this story imputes wrongdoing to any person or company, and none of the documents allege any.