Mateer v Byron Shire Council

[2021] NSWLEC 1597

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mateer v Byron Shire Council [2021] NSWLEC 1597

Hearing dates:

Conciliation conference on 20 August, 10 September 2021

Date of orders:

13 October 2021

Decision date:

13 October 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See [19]

Catchwords:

Development application – alterations and additions to an existing dwelling – conciliation – agreement – orders

Legislation Cited:

Byron Local Environmental Plan 2014 cll 6.2, 6.6, Part 2

Environmental Planning and Assessment Act 1979 ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000 cl 55

Land and Environment Court Act 1979 s 34

State Environmental Planning Policy (Coastal Management) 2018 cl 14

State Environmental Planning Policy No 55 – Remediation of Land cl 7

Category:

Principal judgment

Parties:

Rianon Mateer (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):

2021/163283

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Byron Shire Council (Council) of DA10.2021.197.1 (DA) for alterations and additions to an existing dwelling house being the construction of a garage, removal of an existing retaining wall, construction of new retaining structures and construction of a swimming pool and deck on the land at lot 12 in Deposited Plan 248 861 known as 51 Brownell Drive, Byron Bay (site).

2. Specifically, the proposed development consists of:

1. Construction of a two (2) car garage and associated driveway;

2. Construction of a swimming pool above the garage structure;

3. Associated decking surrounding the proposed swimming pool;

4. Construction of new retaining structures;

5. Construction of new store and lift; and

6. Construction of new access and stairway.

3. On 20 August and 10 September 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. The proposed decision was to note that the Applicant had lodged an amended development application and to grant development consent subject to conditions.

5. The amended development application has been lodged on the NSW Planning Portal and on 20 September 2021 the amended development application was lodged with the Court together with an agreement pursuant to s 34 of the Court Act in a satisfactory form giving effect to the agreement in principle.

6. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. The parties have provided a helpful jurisdictional statement setting out the matters about which the Court must be satisfied prior to granting development consent.

Byron Local Environmental Plan 2014

7. The Site is zoned R2 Low Density Residential pursuant to Byron Local Environmental Plan 2014 (BLEP 2014). A dwelling is permissible with consent in accordance with the land use table in Part 2 of BLEP 2014.

8. The proposal complies with all development standards in BLEP 2014 and no variation is therefore sought.

9. Pursuant to cl 6.2(2) (earthworks) of BLEP 2014, development consent is required for earthworks and the consent authority must consider the relevant matters set out in cl 6.2(3).

10. The amended application was accompanied by further Geotechnical report prepared by Pacific Geotech dated July 2021 which demonstrates compliance with cl 6.2 of BLEP 2014.

11. Having regard to the additional information submitted in support of the DA, I am satisfied that the proposal complies with:

1. Clause 6.6(c) – the disposal and management of sewage

2. Clause 6.6(d) – stormwater drainage

3. Clause 6.6(e) – suitable vehicular access

State Environmental Planning Policy No 55 – Remediation of Land

12. Pursuant to cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), the Court must not grant consent to development unless it has considered whether the subject land is contaminated.

13. The proposal does not involve a change of use, being currently used for residential purposes by means of the existing dwelling house on the land.

14. A contamination report prepared by Tim Fitzroy & Associates, dated 4 August 2021 has been provided dealing with the potential for contamination of the site. Having regard to that report and given the history of residential use of the Site and its locality, I am satisfied that the Site has been used for residential purposes and has not been used for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines.

15. I am satisfied that the land in its present condition is suitable for the residential purpose for which the proposed development is to be carried out.

State Environmental Planning Policy (Coastal Management) 2018

16. The development is located within the ‘coastal use area’ as defined in State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP).

17. The amended application was accompanied by a visual impact assessment. I am satisfied that the amended development application satisfies the requirements of cl 14 of the Coastal Management SEPP.

18. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 EP&A Act.

19. Having been satisfied that the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions, I make the following orders:

The Court notes:

1. That Byron Shire Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application 10.2021.197.1.

2. That the amended application set out below has been lodged on the NSW planning portal.

3. That the Applicant filed the amended application with the Court on 20 September 2021.

4. The amended documentation which has been uploaded to the Planning Portal is as follows:

1. The Amended architectural plans prepared by Murray Cox as referenced in condition 1 of Annexure A;

2. Civil Engineering plans prepared by SDS Civil Enterprises as follows:

1. SDS C2 Rev B, SWMP – Proposed Drainage Plan, dated 20/08/2021

2. SDS C3 Rev B, Bulk Earthworks Construction Batters & sections, dated September 2021

3. SDS C5 Rev A, Sewer Servicing Works dated 18/08/2021

3. Geotechnical Report prepared by Pacific Geotech and dated 9 July 2021, as referenced in condition 1 of Annexure A;

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application 10.2021.197.1 (as amended) comprising alterations and additions to an existing dwelling house being the construction of a garage, removal of an existing retaining wall, construction of new retaining structures and construction of a swimming pool and deck on the land at 51 Brownell Drive, Byron Bay (lot 12 in DP 248 861), subject to conditions set out in Annexure A hereto.

…………………………

P Clay

Acting Commissioner of the Court 

Annexure A (238254, pdf)

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Decision last updated: 13 October 2021