310 Properties Pty Ltd v Byron Shire Council

[2025] NSWLEC 1028

Land and Environment Court

New South Wales

Medium Neutral Citation:

310 Properties Pty Ltd v Byron Shire Council [2025] NSWLEC 1028

Hearing dates:

11 and 12 December 2024

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) The development application 10.2023.244.1 for the demolition of existing structures, removal of 29 trees and construction of a multi dwelling housing development with basement parking at 310 Ewingsdale Road, Byron Bay (Lot 3 DP 551947) is determined by the grant of consent subject to the conditions in Annexure A.

(4) The Exhibits are returned with the exception of A, B and 1.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – amended plans and documents – contentions resolved by amendments and expert evidence – consideration of objections – appeal upheld.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7,

Land and Environment Court Act 1979, s 34

Biodiversity Conservation Act 2016, s 7.13

Environmental Planning and Assessment Regulation 2021, s 23

Biodiversity Conservation Regulation 2017

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.4, 2.48,

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environment Planning Policy (Building Sustainability Index: BASIX) 2004

Byron Local Environmental Plan 1988, cll 82, 84, 90, 97, 98, 100

Texts Cited:

Byron Shire Development Control Plan 2014

Category:

Principal judgment

Parties:

310 Properties Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Yates Law (Applicant)
Marsden Law Group (Respondent)

File Number(s):

2023/462956

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of Development Application 10.2023.244.1. The development application seeks consent for the demolition of existing structures, removal of 29 trees and construction of a multi dwelling housing development with basement parking. The development is proposed at 310 Ewingsdale Road, Byron Bay (Lot 3 DP 551947)

2. The appeal was subject to conciliation on 8 July, 2024, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached the conciliation conference was terminated pursuant to s 34(4) of the LEC Act.

3. The hearing commenced onsite with a view of the site and adjacent properties in the company of the representatives and the experts.

The site and its context

4. The site is an L-shaped lot with a northern frontage to Ewingsdale Road of 80.745 metres wide and a southern frontage 31.285 metres wide to a new internal road to be known as ‘Autumn Court’ in the ‘Harvest Estate’. This road is yet to be opened to the public and is pending application and approval of a subdivision certificate.

5. The site is mainly flat with a gentle cross fall sloping down towards the south west. The north eastern part of the site contains a single storey brick dwelling house with outbuildings and a low brick fence, with vehicular access from Ewingsdale Road. The dwelling is setback approximately 15 metres to the Ewingsdale Road boundary. There is a secondary dwelling on the southern part of the site, setback approximately 2.5 metres from the current rear boundary to the south.

6. The site adjoins an existing single storey dwelling house to the west at 300 Ewingsdale Road and is adjacent to approved residential Lots 2-4 and 901 open space lot in the ‘Harvest Estate’. The site is serviced by reticulated water, mains sewage, and electricity. Essential Energy overhead powerlines are located across the Ewingsdale frontage of the site.

The amended development application

7. Leave was unopposed and granted by the Court at the commencement of the hearing for the Applicant to amend the application by relying on amended architectural plans (Exhibit A). 

8. Supplementary joint expert reports addressing the amended plans were prepared and filed by the Planning experts in the proceedings. The supplementary report addressed how objections received by the Respondent following notification of the application have been considered.

Issues

9. As a result of the amendments to the development application the Respondent submits that the contentions raised in the Amended Statement of Facts and Contentions filed on 11 October 2024 (Exhibit 1) have been addressed to the Respondent’s satisfaction, subject to the imposition of agreed conditions of consent (Annexure A).

10. I am nonetheless required to carry out an assessment of the development application pursuant to s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development and any submissions made by the local residents. For the reasons that are set out below, I accept the parties’ agreed position that the contentions raised by the Council on the appeal have now been addressed and that development consent can be granted subject to the agreed conditions of development consent. I am also satisfied that each of the jurisdictional preconditions to the grant of development consent is met.

Expert Evidence

11. The following experts gave evidence in the proceedings:

• Town Planning: Jeff Mead (for the Applicant) and Gerard Turrisi (for the Respondent)

• Biodiversity: Natalie Black (for the Applicant) and Ian Colvin (for the Respondent)

• Waste Management: Jeff Mead (for the Applicant) and Renan Solatan (for the Respondent)

• Accessibility: Farah Madon (for the Applicant) and Renan Solatan (for the Respondent)

• Stormwater & Traffic: Niek Van Oers (for the Applicant) and Renan Solatan (for the Respondent)

• Environmental Health: Jesse Munro (for the Applicant) and Emma Holt (for the Respondent)

12. Each of the preceding pairs of experts prepared joint reports which were admitted into evidence. Given their written agreement that the Respondent’s contentions were resolved, the experts were excused.

Planning Framework

13. The site the subject of the development application is owned by the Applicant: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

14. The number of trees proposed to be removed, the area proposed to be cleared and the discontinuity with vegetation on adjoining sites does not trigger the threshold limits for Biodiversity Offsets for vegetation clearing. However, the site is mapped as having biodiversity values and the development application includes a Biodiversity Development Assessment Report (BDAR). The biodiversity experts in the proceeding conclude that the updated BDAR is acceptable and meets the requirements of the Biodiversity Conservation Act 2016 (BC Act). Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the Biodiversity Conservation Regulation 2017 have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. The annexed conditions include the requirement for the nominated ecosystem and species credits.

15. Essential Energy overhead powerlines are located across the Ewingsdale Road frontage of the site. Pursuant to s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) the development application was referred to Essential Energy for comment. Essential Energy provided their comments on 28 July 2023. Relevant conditions of consent have been imposed (condition 37). The requirements of s 2.48(2) of SEPP TI are met.

16. The site has frontage to a classified road, Ewingsdale Road. Pursuant to s 2.119(2) of SEPP T1 a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a)  where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b)  the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i)  the design of the vehicular access to the land, or

(ii)  the emission of smoke or dust from the development, or

(iii)  the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c)  the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

17. The requirement at s 2.119(2)(a) is met by the development application as access to the site is not sought from Ewingsdale Road. On the basis of the agreement of the traffic experts in the joint reports, I can be satisfied thatthe safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development. With the inclusion of the berm in the frontage of the site, and the acoustic report which forms part of the development application, I am satisfied that the development is appropriately designed to ameliorate potential traffic noise within the site arising from the classified road.

State Environmental Planning Policy (Resilience and Hazards) 2021

18. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated. The development application is accompanied by a Preliminary Site Investigation, a Detailed Site Investigation (DSI) and a Remedial Action Plan (RAP). The DSI concludes that the site can be made suitable, following remediation, for the proposed development. The conditions of consent include a requirement to the complete the works identified in the RAP and other associated requirements. I can be satisfied that the land will be suitable for the purpose for which the development is proposed to be carried out under the application.

19. The amended development application is accompanied by a BASIX certificate dated 9 December 2024, complying with the requirements of State Environment Planning Policy (Building Sustainability Index: BASIX) 2004.

20. Byron Local Environmental Plan 1988 (LEP 1998) applies to the subject site as it is a ‘deferred matter’ under the more recent Byron Local Environmental Plan 2014. The site is zoned R2 Low Density Residential and the use of the land for multi-dwelling housing is permitted with consent in the zone.

21. Clause 82 Minimum lot size of LEP 1998 seeks to establish a minimum lot size for the R2 Low Density Residential zoned land for multi dwelling housing. The minimum lot size for multi dwelling housing in R2 zone land is 1,000m². The parties agree, and I accept, the development application meets the minimum lot size.

22. Applying cl 84 Height of buildings of LEP 1998 applies a maximum height development standard of 9m for the applicable site. The amended development application applies with this standard.

23. Pursuant to cl 90 Preservation of trees or vegetation development consent is sought for tree removal as part of the development application. The development application is supported by an arboricultural report. The requirements of the clause are met.

24. Pursuant to cl 97 Acid sulfate soils the site is mapped as Class 3. The development application is accompanied by an Acid Sulfate Soils Assessment and dewatering management plan. The experts agree that the management plan is acceptable. I accept their agreement. Compliance with the management plan is required by the annexed conditions.

25. Whilst the site is identified as being within the flood planning area pursuant to cl 98 of LEP 1998, the experts agree that the outcome of the adopted Belongil Creek flood study is that the subject site is not flood affected. The parties agree, and I accept, the development application meets the requirements of cl 98 of LEP 1998.

26. Pursuant to cl 100 Public utility infrastructure development consent must not be granted for development on land in an urban release area unless the Council is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The site is serviced by reticulated water, mains sewage, and electricity. The requirements of cl 100 in LEP 1998 are met.

27. Byron Shire Development Control Plan 2014 (DCP) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

Public Submissions

28. The development application was notified by the Respondent between 20 July and 9 August 2023. A total of ten submissions were received. Those submissions raised the following concerns with the development application:

• Overdevelopment, excessive scale and density, out of character;

• Height exceedance not supported and potentially sets a precedent;

• Setback from Ewingsdale Road for earth mound and new road and footpath works;

• Insufficient kerbside space for bin collection;

• Basement dewatering to have negative impact on Wallum Sedge Frog wetland and interrupt groundwater flow;

• Tree removal not supported;

• Stormwater capacity; and

• Insufficient onsite parking.

29. The development application, as amended, was renotified until 10 October. Two submissions were received.

30. Following the grant of leave to the amended development application the planning experts in the proceedings were directed to consider and prepare a supplementary report on the interaction of the amended application with the concerns raised by the objectors.  A supplementary joint report was prepared, filed and admitted as Exhibit 10. That report examined each of the issues raised by the objectors. The planning experts reached the following agreed conclusion:

“It is agreed that the proposal, through the subsequent changes made as detailed within our original report, together with evidence provided by other experts, has addressed the [public submission] concerns above.”

(Exhibit 10)

31. Their evidence addressing each of the issues raised is extracted below:

“a. The proposal is compliant with the height control and the third storey requirement has been amended so it reads as a two-storey development with an attic space as viewed from Ewingsdale Road.

b. Access to the basement is off Autumn Court which provides appropriate flood free access into the basement. The engineering experts have not raised any concerns.

c. The proposal is compliant with the setback controls contained within Council’s DCP.

d. With the changes recommended by various experts, as noted in their respective JER’s and recommended conditions, the proposal is in character with the area as foreshadowed by both the LEP and site specific DCP controls for this area.

e. The proposal is compliant with the key planning controls relating to height, landscaping, site coverage, private open space, setbacks and building articulation. The density control meets the objective of the control as detailed within the Planning JER.

f. Parking allocation and vegetation removal have been considered acceptable as detailed in the respective experts’ reports. It is noted a detailed landscape condition has been recommended to ensure an appropriate urban outcome.

g. Having regard to the above comments and noting this land is zoned residential, the proposal will not create any unreasonable impacts on the environment.

h. The proposal will not create a precedent as the proposal aligns with the relevant planning controls for the site. The proposal will provide for additional housing in the area. Having regard to the comments made above, approval of this proposal is considered in the public interest.”

(Exhibit 10)

32. In undertaking the evaluation under s 4.15 of the EPA Act, I am satisfied that the concerns raised by the objectors do not warrant the refusal of the application.

Each of the contentions raised by the Council has been resolved.

33. As a result of amendments made to the development application in the course of the appeal proceedings, each of the contentions raised by the Council on the appeal has been resolved.

Building Height and Building Height Plane.

34. As noted at [22] the amended development application is compliant with the maximum height standard in LEP 1998. Further, I accept the agreement of the town planning experts that the third storey component of the development has been appropriately redesigned to appear as a two-storey development with an attic space when viewed from Ewinsdale Road.

The development is inconsistent with the desired future character of the locality.

35. I accept the agreement of the agreement of the planning experts that the amended development application is now compatible with the desired future character of the locality as detailed in LEP 1998 and DCP 2014.

Site Coverage and Density

36. The planning experts agree that the performance criteria of Section E8.10.10.3.9 of DCP 2014 are met by the amended development application for the following reasons:

“a. The site coverage of the proposal complies with the numeric controls of maximum 60% (ground floor) and 35% (upper level).

b. The site area of 4,388sqm numerically allows 17.5 x 3 bedroom dwellings, whereas 19 x 3 brm dwelling units are proposed. However, subject to changes agreed above, the size of residential dwellings are considered proportional to the size of land. Key controls of landscape deep soil and site coverage are met, as is maximum height. The amenity of the dwellings is acceptable and impacts on adjoining land, streetscape and character are agreed to be acceptable. The site layout allows for adequate space between and around buildings and setbacks to site boundaries. We note that while the control relates to number of bedrooms, it does not control the size of living areas, inclusion of multi-purpose spaces, media rooms, studies and the like. Accordingly, given compliance with the key planning controls, from a planning point of view, appropriateness of the size of dwellings and proportionality to the size of the land should be considered in envelope and impact terms. Most importantly, the agreed amendments to the upper level of Buildings A and B results in 11 x bedrooms being placed in a roof form. This significantly reduces the bulk and scale of that building element. Those bedrooms do not add to site coverage or have any effect on opportunities for site landscaping, setbacks to adjoining properties or spatial separation between buildings. Accordingly, a reduction of 4 bedrooms at this level (which is what would be required for compliance) would have no tangible benefit and would not benefit proportion of the development to the size of the land. We agree that the additional bedrooms will assist with housing supply and the style of housing adds to the diversity of housing types and sizes across West Byron. We agree that the reduction in number of bedrooms on the site would have no significant bearing on excavation, car parking, waste management or stormwater matters. Accordingly, we agree that the performance criteria is met.”

37. I accept the agreement of the planning experts that the amended plans resolve the previous contention of the Respondent that the density and site coverage of the site in the development application was excessive.

The Biodiversity Development Assessment Report is inadequate

38. As detailed at [14] this contention is agreed to be resolved by the ecology experts in the proceedings. I accept that agreement.

Arrangements for waste management are unacceptable.

39. During the joint conferencing process the waste experts reached agreement to resolve this contention on the basis of amendments to the design of the bin room and changes to the waste management plan. Those amendments have been made by the Applicant. I accept the agreement of the experts that this contention is now resolved.

Access and mobility for people with a disability.

40. The amended architectural plans demonstrate an accessible path of travel to the accessible units and communal areas of the proposed multi dwelling housing development. I accept the agreement of the parties that this contention is now resolved and compliance is assured by the annexed conditions.

Encroachments in the road reserve

41. The previous iteration of the development application included works and structures within the road reserve. This has been addressed in the amended plans. I accept the agreement of the parties that this contention is now resolved, and compliance is assured by the annexed conditions.

Acoustic impacts

42. Initially the Respondent contended that the development application should be refused because it has not been demonstrated that the proposed development will achieve an acceptable level of acoustic amenity, in circumstances where the design of the proposed acoustic barriers and earthmound treatment is not acceptable.

43. As part of the joint conferencing process the experts agreed changes to the earthbound acoustic barrier to ensure it complied with Chapter E8.10.8.8 and part E8.10.8.8 and Figure 8.11 in Chapter B8 of DCP 2014. Further, they agreed that the acoustic report which formed part of the development application, and its recommendations were acceptable and the error it contained could be addressed by conditions of consent.

44. I accept the agreement of the parties that this contention is now resolved, and compliance is assured by the annexed conditions.

Stormwater

45. As part of the joint conferencing process the experts agreed that all concerns raised in this contention have been addressed, or can be addressed by way of agreed conditions.

Development consent should be granted

46. For the reasons expressed above, each of the contentions raised by the Respondent on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused. 

47. The proposed development is permissible on the site, the jurisdictional preconditions have been met and it complies with the relevant development controls. The evidence from the experts engaged in the proceedings do not identify any merit reasons which would support the refusal of the application. Further, I am satisfied that the matters raised by the objectors have been satisfactorily addressed either through amendments to the development application or conditions of consent., 

48. It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.

Orders

49. As noted at [7] the Applicant was granted leave at the commencement of the hearing to amend their development application. The parties agree that is appropriate to make an order for costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the proposed amendments were more than minor.

50. Having reviewed the material in Exhibit A I accept the agreement of the parties. I am satisfied that the proposed amendments are more than minor and that the usual order for costs thrown away be made under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

51. The orders of the Court are:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. The development application 10.2023.244.1 for the demolition of existing structures, removal of 29 trees and construction of a multi dwelling housing development with basement parking at 310 Ewingsdale Road, Byron Bay (Lot 3 DP 551947) is determined by the grant of consent subject to the conditions in Annexure A.

4. The Exhibits are returned with the exception of A, B and 1.

D Dickson

Commissioner of the Court

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Annexure A

Decision last updated: 23 January 2025