Lismore Venture Pty Ltd v Byron Shire Council

[2020] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lismore Venture Pty Ltd v Byron Shire Council [2020] NSWLEC 1150
Hearing dates:	Conciliation conference on 27 March 2020
Date of orders:	31 March 2020
Decision date:	31 March 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	APPEAL – development appeal – multi-dwelling housing – conciliation conference – agreement reached
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) P Hudson (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/153305
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for the construction of multi-dwelling housing at 23 Lismore Road, Bangalow. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 27 March 2020, by telephone. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application reduce the number of dwellings from 17 to 15, achieved by dividing a building that previously had a length of 32m along the rear boundary into separate buildings, which allows for a presentation at the rear that is more appropriate for the site and consistent with the character of the locality. The amendments also added additional parking and privacy measures, and made changes to improve the private open space for the studio apartments. The amended development application complies with the development standards for height and floor space ratio.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 Low Density Residential, pursuant to the Byron Local Environmental Plan 2014 ("BLEP 2014"), in which multi-dwelling houses are permitted with consent.

• The proposed development complies with the applicable development standards in the BLEP 2014 for height and floor space ratio.

• The proposed development complies with the applicable development standards in the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”).

• Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 16A of the SEPP ARH. The parties agree that, as a result of amendments to the plans, the design is compatible with the local character.

• Consideration has been given to the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development, as required by cl 15 of the SEPP ARH.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The parties agree that contaminants have been removed and the site can be made suitable for the development, and a condition of consent has been imposed with respect to any unexpected findings.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The Applicant is granted leave to amend Development Application No. 10.2018.161.1 and to rely on the following amended plans and documents:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
D-S-01	Site Plan	The Kollective	C	21/02/2020
D-P-01	Lower Floor Plan	The Kollective	C	21/02/2020
D-P-02	Upper Floor Plan	The Kollective	C	21/02/2020
D-P-03	Solar Access Plan	The Kollective	B	10/12/2019
D-P-04	Roof Plan	The Kollective	B	10/12/2019
D-E-01	Elevations 1	The Kollective	C	21/02/2020
D-E-02	Elevations 2	The Kollective	C	21/02/2020
D-E-03	Site Sections and External Finishes	The Kollective	B	10/12/2019
D-E-05	South Perspective View	The Kollective	B	10/12/2019
D-E-06	Perspective View Terraces and Driveway / North Elevation – Terraces	The Kollective	B	10/12/2019
D-D-01	Detailed Plan – Typical Studio	The Kollective	B	10/12/2019
D-D-02	Detailed Plan – Typical Row House	The Kollective	B	10/12/2019
D-D-03	Detailed Plan – Row House – AS4299 Adaptable	The Kollective	B	10/12/2019
D-D-04	Detailed Plan – Terraces Lower	The Kollective	B	10/12/2019
D-D-05	Detailed Plan – Terraces Upper	The Kollective	B	10/12/2019
D-S-03	Site Plan – Landscaped Area	The Kollective	B	10/12/2019
D-S-05	Shadow Diagram 3pm	The Kollective	B	10/12/2019
D-S-05A	Shadow Diagram 9am	The Kollective	B	10/12/2019
D-S-05B	Shadow Diagram 12 Noon	The Kollective	B	10/12/2019
D-S-05D	Shadow Diagram 10am	The Kollective	B	10/12/2019
D-S-08	Stormwater Concept Plan	The Kollective	A	17/09/2019
DOCUMENT DESCRIPTION		PREPARED BY	DATED
Assessment of stormwater requirements for proposed development at 23 Lismore Road, Bangalow		Lucena Civil & Structural Engineers	15/07/2019

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $10,000.00 within 14 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. 10.2018.161.1 for the construction of a multi dwelling housing development containing 15 dwellings and a total of 14 on-site car parking spaces, comprising 2 x 3 bedroom dwellings and 4 x 2 bedroom dwellings with 1 car parking space each, 4 x 1 bedroom dwellings and 5 x 1 bedroom studio apartments, at-grade parking containing 8 car parking spaces (including 3 shared spaces), 4 motorcycle parking spaces and 10 bicycle parking spaces and associated landscaping works, with Studio 5 and Row Houses 1, 2 & 3 to be used only for the purposes of ‘affordable housing’, on the land at 23 Lismore Road, Bangalow is approved subject to the conditions of consent at Annexure “A”.

………………………

J Gray

Commissioner of the Court

Annexure A (510 KB, pdf)

Architectural Plans (3.16 MB, pdf)

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Decision last updated: 31 March 2020