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Grafton News

“Unreasonable complainant” vindicated

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Mayor Jim Simmons

“Unreasonable complainant” vindicated

By Tim Howard

A Yamba woman Clarence Valley Council branded an “unreasonable complainant” has been vindicated in the findings of independent regulator the Information Privacy Commission.
In a report released last month, the commission found the council erred in refusing a GIPA request from Lynne Cairns for documents linked to a controversial development application for a property on the Yamba canals.
On November 5, council general manager Ashley Lindsay emailed an apology to Mrs Cairns for refusing her request.
“We got it wrong,” Mr Lindsay said. “I’ve apologised to Mrs Cairns and I have staff working on getting the documents she has asked for.”
He was reluctant to discuss how the council failed to correctly apply the GIPA (Government Information (Public Access) Act) legislation.
Although Mr Lindsay advised Mrs Cairns to make a GIPA application, by the time the request came in June, he was on sick leave and the decision to refuse was made by the acting general manager, Laura Black.
Also in April Mrs Cairns made a formal complaint to Mayor Jim Simmons, informing him she thought the council was failing its GIPA requirements.
Cr Simmons replied to Mrs Cairns in May, saying redacted copies of the documents would be sent to her within three days. That didn’t happen.
Mr Lindsay was at a loss to explain the handling of the GIPA request.
“We should have assessed the GIPA request in accordance with the legislation,” Mr Lindsay said.
“This is no excuse, but I wasn’t at work at the time, I wasn’t aware of the GIPA application until … we got that letter from IPC.
“So I can’t really comment on why we didn’t deal with it properly.”
Mr Lindsay agreed the acting general manager, Ms Black, during the period, was “well qualified”.
“I can’t really comment further,” he said. “My response to Mrs Cairns is that I’ve apologised and staff are working on getting the information she requested in line with the GIPA legislation.”
Council took another look at the development early in the year.
It inspected the works in February 2021 and ordered modification request and a fresh DA for works completed, under construction or to be built.
Mr Lindsay said council had provided some of the information she requested, which was included when the modification request and the new DA were submitted earlier in the year, hinting staff frustration with her persistent requests might have been behind the GIPA request refusal.
There are hints council staff viewed the residents’ objections as unimportant.
In reports to the May meeting about the new DA and the request for modification it noted the original DA approach “was not well received” and result in a “high level of scrutiny during the construction phase”.
Mrs Cairns said she and her husband were not the only ones concerned as council had removed the as built non-complying, unlawful structures into a new DA in order that these structures complied.
Council removed Point 14 of Conditions of Consent from the new DA “All structures located within the 7.5 metre rear building alignment shall not exceed 1.2 metres in height from existing ground level.”
Submissions against the DA included 40 signatures in a petition as residents knew this would set a precedent which could potentially impact their views, sun, breeze and devalue their properties.
But neighbours were not happy as the as built development differed from the original DA, did not comply with regulations and were not included in the original plans including a retractable privacy screen, a water tank and a 4m high privacy screen, from ground level, just behind the revetment wall.
Council’s May reports said “council progress inspections did not occur during construction works”.
“Residents in the canal have just watched the unlawful, non-complying development being constructed, emailed the general manager and he took five months until he finally had a staff member telephone the builder to stop working on the development,” she said.
Mrs Cairns emailed in May 2021 asking why council hadn’t acted in accordance with its planning acts, regulations and enforcement policy. No response was provided.
Mr Lindsay also noted the council was not the only organisation providing information for Mrs Cairns.
“It’s not just staff here that are running around after her,” he said. “She’s got people at the IPC, NSW Ombudsman and the Office of Local Government chasing up information for her.”
The dispute over the 19 Gumnut Rd DA goes back more than two years.
Mrs Cairns, and other residents who live near the property accused the council of mismanaging a development application the owners had lodged for a deck, studio, carport and awning council staff approved under delegated authority in 2019.
Council had ignored photos and wording in Mr and Mrs Cairns submissions in November 2019 prior to original DA approval.
These photos showed the development had been partially constructed prior to DA approval and asked whether a survey was done.
Council ignored this for nearly 18 months. Mrs Cairns received a copy of a basic survey, for the first time, on May 12, dated March 26 after the development had been constructed.
The constructed building is within the required setback and it did not meet the required floor height as required on flood liable land according to council flood mapping.
Between March and June 2021, she was in regular contact with the council, through Ms Black, seeking the documents.
On June 28 Ms Black advised Mrs Cairns that month’s council meeting had resolved the matter and the council would no longer provide her with information about the developments.
On June 30 Mrs Cairns lodged a GIPA request, which the council rejected a week later, based on Section 51 of the GIPA Act, which allow requests to be rejected if they cause “an unreasonable diversion of the agency’s (CVC) resources.”
A week later Mrs Cairns lodged a request with the IPC for a review of the council’s decision.
The council went a step further, late in July, when Ms Black informed Mrs Cairns council staff would no longer interact with her, unless it was regarded as an emergency or an electoral matter and that she had become an “unreasonable customer complainant” – a declaration that would stay in force for six months.
Mrs Cairns said her status as an unreasonable customer complainant had not been resolved.
She knows of two men who have been in almost constant email communication with the council since 2017 and the result was the governance office made an appointment to speak with them. Both men provided email confirmation of this.
“The governance officer stayed there for three hours discussing their issues,” she said.
“Neither of these fellows have been claimed as unreasonable complainants, so it’s inconsistently applied policy.”
In August Mrs Cairns lodged a formal complaint about Ms Black with Mr Lindsay, who had returned to work after a lengthy illness break.
At the same time she informed Mr Lindsay of her GIPA request, which he claimed to know nothing about until after the IPC findings were released.
Mr Lindsay said while the GIPA request was not handled well, the substantive matters behind it were not in question.
“We had three independent assessments of the work done at 19 Gumnut Rd and all agreed the variations were of a minor nature and the as built items were compliant,” he said.
“They had gone above and beyond the original DA approvals, but that’s why we required a modification request and a new DA.”
Mr Lindsay said the property owner’s decision to begin works before getting consent had put council in a difficult position.
“We have a policy of retrospective approval in these situations, if the work is assessed as complying with our planning codes,” he said.
“We can’t just refuse something because work began before consent was given. There are State laws which say if work is compliant, then it’s legal.
“We would be in real trouble if we refused it or ordered it to be taken down if a court found the work complied with the rules.”
Mrs Cairn said the variations were not “minor” as confirmed in the DA Lodgement Checklist Modification of Development Consent with s4.55(2) ticked.
She said council reports were not accurate.
Mrs Cairns said the reports mentioned a portion of the decking was exempt under the State Environment Planning Policy (SEPP) (Exempt and Complying Development Codes) 2008.
“The area that exceeds the SEPP is conservatively calculated at less than 11sqm and is considered a minor variation.”
Mrs Cairns obtained assistance from a building surveyor to calculate the decking exempt under SEPP and this is 25sqm.
The amount of decking constructed as described on the new plans was 122.6sqm.
Upon inquiry to council’s planning section email replied “the codes SEPP does not permit variations and neither of the current applications before council are exempt/complying so the Codes SEPP is not applicable.”
She said there were 10 variations to council’s development control plan not two as claimed in the council reports.
Mrs Cairns wondered why Clarence Valley Council was so far out of step with other regional councils in providing information on its website.
“I’ve done research on Ballina, Armidale, Port Macquarie and Coffs Harbour,” she said.
“All of those councils have the majority of those DA documents available on their websites.
“Probably the most user friendly one is Ballina. It just brings up the documents and you can look at it. No redactions whatsoever.
“If our council would follow that, it would save them a lot of time and resources.”
Mr Lindsay said the council’s website was a work in progress.
“We’ve just made some changes to it and I know there are more changes to come,” he said.
“I’m not aware of what other councils are doing, but I agree in principle that easier access to documents is the best way to go.”
Mrs Cairns said she has been advised the outcome of NSW Ombudsman’s inquiry in relation to 19 Gumnut Rd states.
It said “the Ombudsman’s office cannot replace council’s discretion to make planning decisions.”
In relation to being branded an “unreasonable complainant” Mrs Cairns is awaiting a further response, however the Ombudsman’s office found “council had departed from its unreasonable complainant procedure.”

Clarence Valley News

Second death in custody at new jail

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Clarence Correctional Centre

Second death in custody at new jail

By Tim Howard

A 29-year-old inmate has died at Clarence Correctional Centre on June, the second man to die in custody at the jail in the past six weeks.
The man, identified as Dictor Mayen Dongrin, was due to front Coffs Harbour Local Court the following day on two charges of common assault, one of assault occasioning actual bodily harm and two of stalking and intimidation. 
A spokesperson for the jail operator Serco said Mr Dongrin was found unresponsive in a medical holding room by staff around 1.30pm and was pronounced dead by paramedics shortly after.
Serco, Corrective Services NSW and NSW Police were investigating the incident.
All deaths in custody are subject to a coronial inquest.
Mr Dongrin was also involved in a apprehended domestic violence hearing with another family member
The court has ceased all proceedings involving Mr Dongrin because of his death.
The spokesperson said Serco extends its condolences to the family and friends of the man.

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Clarence Valley News

Appeal fails: John Edwards behind bars till 2035

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Appeal fails: John Edwards behind bars till 2035

Appeal fails: John Edwards behind bars till 2035

By Tim Howard

A former Grafton school teacher jailed for 24 years for the murder of his wife nearly seven years ago, will serve out his entire sentence.
John Wallace Edwards, 65, was convicted of the murder of Sharon Edwards in December 2019 and jailed for 24 years with a non-parole period of 18 years.
On February 14 a panel of three Supreme Court judges, Chief Justice Tom Bathurst and Judges, Stephen Rothman and Hament Dhanji unanimously rejected Edwards’ appeal against his sentence.
At the October 20 hearing, Edwards counsel argued a four-point appeal that the trial judge should have directed the jury to the availability of a manslaughter verdict, and that the murder verdict was unreasonable and could not be supported with the available evidence.
But the Appeal Court was not swayed.
They found the trial judge, Robert Hulme, had provided the jury with sufficient direction on the possibility of a manslaughter verdict.
In addition the defence, while aware of the possibility of a manslaughter verdict, had not argued for it until late in the trial.
Central to the four interconnected points of the appeal was Edwards post-offence behaviour.
Edwards counsel argued the judge should have directed the jury that this behaviour should be described as “intractably neutral”, that is, it was equally indicative of manslaughter or murder.
But the appeal judges found Edwards behaviour after the events of March14-15, 2015, was that of a murderer.
Although they disagreed Edwards had provided “13 different accounts” of what happened on the night of his wife’s disappearance and almost certain death, there were certainly a number of different stories.
They found the differing versions of events and other lies Edwards told indicated he had been prepared to inflict serious injuries that could have led to the death of his wife.
One of the accounts, told to two of his sons, was he had a physical altercation with this wife on the night of her disappearance.
“…yeah he said, ‘He’d, like he’d snatched the iPad, he’d wrestled with her’…he had her hand pinned behind her back or her side and he slammed her on the floor and she hit her head and then she got up and went to bed‘,” a son told the trial jury.
The appeal judges also said evidence he had broken a bone in his right hand, described by a doctor as a “boxer’s fracture”, around the time of the offence, indicated he had been capable of inflicting a blow powerful enough to cause serious injury leading to death.
In his finding Justice Dhanji noted: “There was no evidence of any disturbance consistent with an argument on the night of the deceased’s death. Nothing of this nature was heard by the neighbours. Nor was there any evidence that the applicant was intoxicated. Even if any assault was unplanned, these matters point away from an uncontrolled outbreak of violence. In these circumstances the possibility that the applicant struck the deceased with a blow sufficiently hard to break a bone in his hand suggests a level of force consistent with an intention to cause, at least, really serious injury.
“Further, if, for example the deceased hit her head as a result of falling on a hard surface after such a blow or otherwise, death was unlikely to have been instant. For the reasons discussed above, not seeking assistance and then disposing of the body suggest, a disregard for the deceased, and point away from an intention to do something less than inflict really serious injury.”
Edwards’ determination to withhold the location of his wife’s remains, despite the pain it caused the rest of the family was another indication his wife’s death had been deliberate rather than accidental.
Other indicators, such as Edwards realisation his wife was about to leave him for another man, and financial concerns about their jointly owned properties strengthened the case for a verdict of murder.
The murder of Mrs Edwards, who disappeared after a night out with friends in Grafton in 2015, shocked the Clarence Valley.
Initially treated as a missing person investigation, on April 1 it turned into a homicide case and Edwards and the couple’s three sons made impassioned pleas for people who knew anything to come forward.
The popular teacher had no enemies, but it emerged her marriage to Edwards was finished.
During the trial it emerged she had rekindled a relationship with an old flame, William ‘Billy’ Mills, who had been with her on the night of her disappearance and they had plans to live together.
By mid 2017 and despite no sign of her body, police were convinced Edwards had killed his wife and he was formally charged with murder.
At his trial, which concluded in December 2019, a jury found Edwards guilty of his wife’s murder. Son Josh said after the trial he no longer considered Edwards his father for what he’d done to his mum.
Edwards has never hinted at the location of his wife’s body.
He will serve out the remainder of his sentence of 24 years with a minimum of 18 years non-parole from June 20, 2017. His earliest release date is June 19, 2035.

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Clarence Valley News

Grafton’s time-old royal tradition leads the way against gender discrimination

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Grafton’s time-old royal tradition leads the way against gender discrimination

Grafton’s time-old royal tradition leads the way against gender discrimination

By Lesley Apps

FOR the first time in its 88-year history the Jacaranda Queen program will welcome kings and ambassadors into its entourage.

While the role of Jacaranda Queen is traditionally female, to honour the inclusive spirit that festival manager and the committee have been championing over the past few years, people of all gender identities are welcome to enter the 2022 event.

Reigning Grafton Jacaranda Queen, Hanna Craig said the committee decided the time was right to recognise the diversity of gender and update the festival’s program accordingly.

“We are an inclusive organisation and welcome everyone and support safe and diverse spaces, and this move is in line with this approach,” Miss Craig said.

She said accepting how someone identifies was the right step to take.

“Acknowledging this not only supports the Festival’s contemporary approach but paves the way for other (similar) events to do the same.”

Festival manager Mark Blackadder said all entrants will be referred to as Jacaranda candidates (junior or senior).

“Winners can choose whatever title they feel comfortable with, Queen, King or Ambassador.”

While the festival committee was looking forward to welcoming a more progressive competition this year it’s not the first time the format has deviated from its all-female tradition.

In 2003 two male candidates, Wayne Herbert and Scott Kelly, showed interest in entering, causing varying degrees of controversy as the local paper reported at the time before both pulled out of the competition.

It reported Mr Kelly had partnered two Queens vying for the title in the past but wanted to be called King, while Mr Herbert, then manager of the town’s Gay and Lesbian Resource Centre, was happy with the Queen title but withdrew his candidacy after challenging the festival’s fundraising rules after he wanted to nominate his own charity rather than support the annual event.

While the Jacaranda Committee at the time (almost 20 years ago) was supportive where possible, it generated plenty of press coverage and community conversation, prompting a former queen to write to the paper to say the behaviour of the male candidates was “inappropriate and distasteful” and made a mockery of the event.

Nominations for the 2022 Grafton Jacaranda Festival Queen, King or Ambassador are now open. A candidates information evening will be held at the Grafton District Services Club on Friday, March 18, 6pm. For more information on the Grafton Jacaranda Festival visit: www.jacarandafestival.com

Caption: Reigning Jacaranda royal party, from left: Junior Jacaranda Princess: Aaliyah Scarlet Roach, Jacaranda Princess: Breeze Paine, Jacaranda Queen: Hanna Craig, Junior Jacaranda Queen: Brooke Chapman. Change is in the air with a new gender inclusive Jacaranda Candidate program for 2022.

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