Byron Hotel P/L v Byron SC - [2005] NSWLEC 265

Land and Environment Court

of New South Wales

CITATION:
Byron Hotel P/L v Byron SC [2005] NSWLEC 265

PARTIES:
APPLICANT
Byron Hotel Pty Limited
RESPONDENT
Byron Shire Council

FILE NUMBER(S):
10271 of 2000 and 10989 of 2002

CORAM:
Hoffman C

KEY ISSUES:
Appeal :- two s 96 applications to amend 2 existing consents.
* floodwater storage capacity
* protection of buildings from flooding
* sewerage loads and treatment plant capacity
* vehicle ramp gradients - sight safety distances - headroom and pedestrian crossings of ramps
* adequacy of truck loading dock
* public access to toilets.

LEGISLATION CITED:
Byron Local Environmental Plan 1988
Australian Standard 2890.1 and 2890.2
Byron Development Control Plan 2002
Environmental Planning and Assessment Act 1979

DATES OF HEARING: 15/02/2005

DATE OF JUDGMENT:

04/22/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Bofur, solicitor
of Phillips Fox
RESPONDENT
Mr S. McKelvey, solicitor
of Byron Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

22 April 2005

02/10989} BYRON HOTEL PTY LIMITED v BYRON SHIRE COUNCIL
00/10271}
JUDGMENT

1 This is two class 1 appeals, 10271/2000 and 10989/2002 between Byron Hotel Limited and Byron Shire Council in regard to two s 96 applications to amend DA 10.1999.782 and DA 10.2001.648.1. At a mention on these appeals the parties indicated they had reached consent orders but final documents had to be prepared and checked. The proposals had been exhibited for public submissions and there were no objections. The parties indicated that provided no oral evidence was needed they wanted the Court to deal with the draft orders and other documents in chambers when received.

2 The documents were duly received, the last letter of confirmation from the respondent seeking consent orders being dated 15 April in Exhibit 1. Appeal 10271 of 2000 dealt with the stage 1 development of the site known as the Byron Village. The Court issued consent on 20 December 2000. There had been two other s 96 applications approved since that time.

3 Appeal 10989 of 2002 dealt with stage 2 development of the Byron Village and it was approved by council on 16 September 2003, but was the subject of an appeal on conditions, and after negotiation, consent orders were issued on 22 October 2003. Although in two stages with two consents the development is on a combined parcel of land comprising five allotments, including the rear of the Great Northern Hotel that fronts Jonson Street, one of the main streets in the Byron Bay Shopping Centre.

4 Stage 1 and 2 are mainly on lots that currently have houses on them at the rear of the hotel. Stage 1 fronts Fletcher Street that runs parallel to Jonson Street, but it has shops and frontages also to Lawson Lane and Byron Street.

5 Stage 2 fronts Byron Street and Lawson Lane between stage 1 and the drive in bottle shop of the hotel. The vehicle drive through runs between Byron Street and the lane. It also acts as a drainage easement for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 265
Decision Date: 04/22/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Byron Hotel Pty Limited sought to amend two development consents in relation to their proposed developments in Byron Village. The first consent, relating to stage 1, was granted on 20 December 2000, and the second, for stage 2, was granted on 16 September 2003. The primary legal issues revolved around the adequacy of various design elements and compliance with planning and environmental standards, including floodwater storage capacity, protection of buildings from flooding, sewerage loads and treatment plant capacity, vehicle ramp gradients, sight safety distances, headroom, pedestrian crossings of ramps, adequacy of the truck loading dock, and public access to toilets. The court had to determine whether the proposed modifications met the statutory requirements and planning controls, and if the consent orders should be granted.

The court considered the evidence and reports submitted by the parties, including the consultant town planner's report and the engineers' assessments. The consultant's report concluded that the changes to the plans resulted in an overall reduction in sewerage loads, and the physical layout improvements enhanced management and circulation within the development. The engineers confirmed that the vehicle access ramps and loading dock modifications complied with relevant standards while ensuring compliance with flood level requirements. The court was satisfied that the parties had reached a consensus on the proposed changes, and the necessary amendments to the consents were limited to updating references to the amended drawings. The court concluded that all relevant matters had been properly considered and that there was no justification to refuse the consent orders.

Accordingly, the court granted the consent orders for both appeals. For appeal 10271 of 2000, the court modified the development consent to allow the development to proceed in accordance with the amended plans, replacing the previous references to the approved drawings with the new drawing numbers. For appeal 10989 of 2002, the court similarly modified the development consent to allow the development to proceed in accordance with the amended plans, updating the references to the approved drawings and ensuring that the colours and materials used were consistent with the approved plans. The court retained the exhibits and documents filed in the case for its records.

Orders