Legal battle loomed behind closed doors over sand on Stockton Beach

The NSW Government and the City of Newcastle had reached yet another impasse, putting at risk the initial phase of the re-nourishment of Stockton Beach, potentially delaying the work for up to 18 months.

Both levels of government had copped a lot of flak for an ongoing stalemate between them and a distinct lack of action despite a decades-long community campaign.

More than 150 documents provided to the Newcastle Herald under Government Information Public Access laws reveal that, away from the public eye, the long-awaited $6.2 million project, which put the first 100,000 cubic metres of sand onto the beach in October, was on a knife's edge right up until the 11th hour.

The tide was turned - and the project salvaged - only after the NSW Department of Regional NSW turned to its legal department - as did the council. That legal advice, and what it cost both sides, remains confidential.

The stand off between the two camps was, once again, linked to who should hold the licence to dredge the sand.

That had seemingly been solved the day that Newcastle MP Tim Crakanthorp announced that a NSW Labor government would commit $21 million to the project - February 8, 2023.

The City of Newcastle applied to the Department of Planning and Environment for a licence to dredge the sand needed the same day.

About six weeks later, on May 25, it was approved.

But the council didn't want it.

Lord Mayor Nuatali Nelmes sought a meeting with the newly appointed Minister for Regional NSW, Tara Moriarty.

The minister sought a pre-meeting brief with senior staff, advisers, and department heads.

Publicly, as well as inside the government and council public relations machines, the focus was on the next meeting of the Stockton Beach Taskforce.

There were scores of emails, text messages, briefing notes, and suggested itineraries flowing back and forth between media advisers, senior staff, managers, chiefs of staff and others nutting out the timing and content of media releases, photo opportunities, and talking points.

On the day of the meeting, Mr Crakanthorp and Ms Moriarty announced where the first 100,000 cubic metres of sand would come from.

Behind closed doors the issue of the 'conditions' of the licence was marked as a 'work in progress', and under the council's review.

The next day, the council emailed the Department of Planning and Environment (DPE) for 'clarification' as to who should hold the licence.

The minutes of a meeting at which that was likely discussed are completely redacted.

On June 30, less than a week after receiving the licence approval, the council directed DRNSW to take over the licence.

That was not well received.

There was a "high sense of urgency" within DRNSW and Public Works around the engagement of a dredging company for which there was a very narrow window of opportunity.

Past that window, the project would be delayed, yet again, for a possible 18 months or more.

The council's unwillingness to negotiate, after reneging on its original agreement, was "disappointing", DRNSW Deputy Secretary Jonathan Wheaton told Minister Moriarty's chief of staff Brad Fitzmaurice in an email obtained by the Herald.

Council's position put at "significant risk" the ability for a tender to be warded in time to dredge and place sand before summer, it said.

The DPE came back to the council saying it was the licence holder under the existing conditions and there was no time to change that.

There was a "narrow window of opportunity for a suitable dredging vessel to be available" and any delay to awarding the tender would place that at "considerable and critical risk".

The state government did not "have the right" to place sand on land managed by them, without their consent, the council was told.

"Not only can we not place sand without your consent, it would be highly unusual, and is simply not reasonable (for us to be the proponent) as we are neither the land manager nor land owner," Department of Public Works executive director Drew Varnum told the council in a letter dated July 12.

It needed consent in the form of an agreement, or deed. The state government then supplied the council with a "simple letter" authorising Public Works to carry out the initial dredging and sand placement.

Council did not sign it.

Department heads hurried to find ways of "escalating" the issue.

The situation was summed up in a July 19 email from Ms Moriarty's chief of staff, Brad Fitzmaurice, to DRNSW's Mr Wheaton.

In many meetings and discussions in the five months to June 30, the council had consistently advised it would allow use of (approvals and licences), he said

"This departure by council from previous agreements and unwillingness to negotiate for a positive community outcome is disappointing," Mr Fitzmaurice said.

It was a departure from usual practise, and "puts at significant risk the ability for the tender to be awarded in time to dredge and place sand before the next summer season".

"NSW Government has acted in good-faith to deliver council's desired outcome," he said.

The government hurried to arrange a meeting between DRNSW secretary and Newcastle Council CEO Jeremy Bath to "discuss and resolve the impasse".

In a brief for the secretary ahead of that meeting, DRNSW heads said the department was now seeking legal advice.

The documents shared to the Herald are silent on the outcome of that meeting.

In a letter from the council dated July 27, the council doubled down.

It set out it expected roles and responsibilities, complete with a flow chart.

Their "expectation" was that DRNSW lead the project, and follow the council's proposed pathway, which included changing the name of the proponent to DRNSW, "and not a council proponent".

The council went a step further, going public with its stance in a press release issued on August 1.

In it, the City of Newcastle's executive director of Planning and Environment, Michelle Bisson said the NSW Government was "best placed to own the process of sourcing and placing sand on Stockton Beach, and it is appropriate that they own all of the associated approvals".

The copy of the minutes of the next Stockton Beach Nourishment Implementation group meeting provided to the Herald (an internal group, as opposed to the community taskforce group) are blacked out.

However, the way forward was made clear for all when Public Works confirmed with Crown Lands that they could, in fact, use the licence and approvals sitting with council - without their consent, written or otherwise.

That news was to be shared with Cr Nelmes at a meeting with the new Minister for the Hunter, Yasmin Catley.

The lord mayor was informed that a contract to undertake initial dredging had been approved - because, despite the council's change of heart and lack of cooperation, Public Works had gone ahead with market sounding and completed a tender process.

The process was set out in a formal letter to the council on August 23.

A month later, the council and the two ministers issued separate press releases announcing the tender of a contract, along with pictures of all three standing together along with federal Newcastle MP Sharon Claydon.

"It is pleasing to see all three levels of government working together to achieve this fantastic outcome for Stockton," the council's release said.

A little over six weeks later, the council issued its "rainbow of sand" press release, complete with glowing images of the dredge in action.

In the images that came with it, Cr Nelmes can be seen standing shoulder to shoulder with Ms Moriarty, Ms Catley, and Stockton SLSC director of Life Saving Brendon Ryman celebrating the arrival of the dredge at Stockton.

There was no mention of the precipice they'd approached and stood so close to in the months leading up to that date.

In a statement attributed to "a spokesperson", the council said it had always held the position that the NSW Government was responsible for delivering the sand renourishment works at Stockton.

"In the earlier absence of State Government leadership, CN completed the front-end work for the much-needed sand nourishment, including the environmental assessment for sand placement, development of a detailed monitoring program, and liaison on a Crown Land licence," it said.

With confirmation that the NSW Government would undertake the delivery of both amenity and mass nourishment it is more appropriate that the proponent of all approvals/ licences is the NSW Government entity undertaking the works.

"Our position which was ultimately accepted by the NSW Government, was supported by legal advice we sought to make clear the Government could and should be the proponent for the sand nourishment works.

"History shows that the initial beach nourishment was successfully undertaken by the NSW Government in October last year."

A statement from the Department of Regional NSW said the state government had worked successfully with the council "to secure the necessary licenses and approvals" that delivered 130,000 cubic metres of sand to Stockton Beach in November 2023 .

"This sand renourishment ended years of deadlock and inaction and delivered real results for the people of Stockton."

The NSW Government's Department of Climate Change, Energy, the Environment and Water was now working with the City of Newcastle on a longer-term plan for Stockton, it said.