Lismore Venture Pty Ltd v Byron Shire Council

[2020] NSWLEC 1299

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lismore Venture Pty Ltd v Byron Shire Council [2020] NSWLEC 1299

Hearing dates:

Conciliation conference on 26 June 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 , the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $6,800, those costs being payable within 28 days of the date of these Orders.

(3) The appeal in respect of the property known as 6 Julian Rocks Drive, Byron Bay is upheld.

(4) Development Application 10.2019.458.1 for the demolition of existing structures and construction of a multi dwelling housing development consisting of 6 two storey, two bedroom townhouses, with 6 car spaces and associated landscaping at 6 Julian Rocks Drive, Byron Bay, is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55—Remediation of Land

Category:

Principal judgment

Parties:

Lismore Venture Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/337803

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against Byron Shire Council's refusal of Development Application 10.2019.458.1 (‘DA’).

2. The DA seeks consent for the demolition of existing structures and construction of a multi dwelling housing development consisting of 6 two storey, two bedroom townhouses, with 6 car spaces and associated landscaping at 6 Julian Rocks Drive Byron Bay, legally described as Lot 41 DP714410. The proposal relies on the provisions for Infill Affordable Housing under State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 26 June 2020, and at which I presided. Amended plans were considered at the conference which among other things provided for the scaling back of the development. After the conciliation conference, the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. In advice dated 2 July 2020, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, and noting this advice, I am satisfied of the following:

1. The proposal is permissible under Byron Local Environmental Plan 2014 (‘LEP’), with multi dwelling housing permissible in the R2 Low Density Residential Zone that applies to the site. In accordance with cl 2.3 of the LEP, I have had regard to the zone objectives. On the advice of the parties, I am satisfied that the proposal meets the height standard (cl 4.3). On similar advice, I am satisfied with regard to acid sulfate soils (cl 6.1) as excavation is not required below 1m, and in regard to essential services availability (cl 6.6). The matters required to be considered at cll 6.2 (Earthworks) and 6.7 (Affordable housing) have been considered.

2. The SEPP applies to the proposal. The site is within 400m walking distance from land within Zone B4 Mixed Use (cl 10 of the SEPP). The proposal complies with the maximum floor space ratio permitted under the SEPP (cl 13). I have taken into consideration the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004 (cl 15). I have also taken into consideration whether the design of the development is compatible with the character of the local area (cl 16A). In accordance with cl 17 of the SEPP, the parties have agreed on conditions to the effect that:

(a) for 10 years from the date of the issue of the occupation certificate—

(i) the dwellings proposed to be used for the purposes of affordable housing will be used for the purposes of affordable housing, and

(ii) all accommodation that is used for affordable housing will be managed by a registered community housing provider, and

(b) a restriction will be registered, before the date of the issue of the occupation certificate, against the title of the property on which development is to be carried out, in accordance with section 88E of the Conveyancing Act 1919, that will ensure that the requirements of paragraph (a) are met.

3. I am advised that the application was notified in accordance with requirements and I have considered public submissions as required under cl 4.15 of the EPA Act.

4. Having received advice from Council in regard to geotechnical studies undertaken and specified conditions of consent, the requirements of cl 6.2(3) of the LEP, in regard to earthworks, have been met.

5. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55’), consideration has been given as to whether the subject site is contaminated. I am advised that Council’s relevant experts determined that no technical examination was required due to the site’s historical use for residential purposes.

7. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

9. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 , the Applicant is to pay the costs of the Respondent that were thrown away as a result of amending the development application in the amount of $6,800, those costs being payable within 28 days of the date of these Orders.

3. The appeal in respect of the property known as 6 Julian Rocks Drive, Byron Bay is upheld.

4. Development Application 10.2019.458.1 for the demolition of existing structures and construction of a multi dwelling housing development consisting of 6 two storey, two bedroom townhouses, with 6 car spaces and associated landscaping at 6 Julian Rocks Drive, Byron Bay, is approved subject to the conditions at Annexure “A”.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (249296, pdf)

Plans (4470423, pdf)

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Decision last updated: 15 July 2020