PAG Services Pty Ltd v Byron Shire Council

[2004] NSWLEC 267

Land and Environment Court

of New South Wales

CITATION:	PAG Services Pty Ltd v Byron Shire Council [2004] NSWLEC 267
PARTIES:	APPLICANT PAG Services Pty Ltd RESPONDENT Byron Shire Council
FILE NUMBER(S):	10744 of 2002
CORAM:	Murrell C
KEY ISSUES:	Development Application :- consent orders - ten town houses
LEGISLATION CITED:	Environmental Planning and Assessment Act Byron Shire Local Environmental Plan
CASES CITED:
DATES OF HEARING:	24/03/2004
EX TEMPORE JUDGMENT DATE :	03/24/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr McEwen, SC SOLICITOR Stacks The Law Firm with Halliday & Stainlay RESPONDENT Ms K Gerathy, solicitor SOLICITOR Abbott Tout

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10744 of 2002

Murrell C

24 March 2004

PAG Services Pty Ltd
Applicant

v

Byron Shire Council
Respondent

Judgment for Consent Orders


1 . This is an appeal under s 97 of the Environmental Planning and Assessment Act against council's refusal of a development application for the properties known as 112- 116 Lighthouse Road, Byron Bay. The original development application submitted to the council for twenty units was refused in November 2001. Subsequently an amended development application was submitted to the council for some ten townhouses, and a review s 82A of the Act was undertaken. The officer recommended that there be approval of the ten townhouse development as generally shown in the plans submitted to the Court as Exhibit A, together with a number of conditions. This appeal was lodged in respect of two conditions, Nos 2 and 3.

2 . The proceedings commenced on site this morning and the court heard from objectors to the proposal and a number of experts. Further discussions between the parties have taken place over the course of the day and this afternoon the parties have presented consent orders to the Court. The extensive discussions and conferencing between the experts on behalf of both the council and the applicant, in particular landscape experts, town planners and architects, has resulted in the amended conditions which appear in Exhibit 1. The amended conditions are agreed to between the applicant and the council. In particular, they address the concerns of the council with respect to setbacks and ensuring that the development does not unreasonably interfere with the vegetation on the site. And as such on the boundaries there are 2 m vegetation strips to be retained. This includes Lilly- Pillys on the southern boundary Norfolk Island Pines on the street reserve to be retained and the coastal cypress on the eastern boundary to be retained.

3 . The site is some 2662 m2 and has a frontage to Lighthouse Road of 49 m, and consists of three allotments.

4 . To the north of the subject site there is currently a dual occupancy development currently under construction and to the south of the subject site there is an eight unit residential building of a number of years in age. The Court heard from two objectors on site this morning. The owner of unit number 3 of 110, the ground floor unit on the northern side boundary of the proposal is concerned about the proposed development in terms of solar access to her unit, in particular her living and bedroom areas. Subsequent to the meeting on site this morning, the architect has carried out calculations and the Court is satisfied that solar access to her unit will not be unduly interfered with and that any interference is reasonable because the ‘AMCORD’ requirement for three hours solar access is retained, in fact more is retained for that particular unit. The affectation would occur earlier in the morning and there is still more than three hours of sunlight access to her unit. She was also concerned about access for construction from the rear laneway, which is a fire trail under the control of the National Parks, however while this is not a matter for these proceedings the applicant has indicated that access for construction will not take place over the fire trail.

5 . The other person that the Court heard evidence from this morning was Miss Sue Walker who is with the National Parks and Wildlife Service for Cape Byron. She was concerned about the cypress pine trees. Following discussions on site this morning the Court is satisfied with the planting of extra specimens and the retention of five along the eastern boundary and one on the southern boundary does that the proposal will contribute to the vegetative character of the area. As such the issue of landscaping is not a reason that would warrant refusal of the development application.

6 . The landscape plan clearly shows areas for canopy trees to grow within the boundaries, so that the development is not excessively borrowing from adjoining lands but makes a positive contribution to the vegetated nature of the area.

7 . The experts in a number of disciplines provided an agreed statement to the Court in terms of Exhibit C and there has been, as I have said, joint conferencing which has been most productive in this particular case and the Court thanks the parties for the co-operative was conferencing has occurred in this matter.

8 . The Court must be satisfied even when consent orders are brought to the Court that the development application is satisfactory. In this case the Court sees no reason why the consent orders as agreed to between the parties should not be issued. In concluding this the Court has considered the objections raised. However, I am satisfied that their concerns are appropriately addressed in the amended conditions and the amended plans flowing from such conditions.

9 . Therefore, on the basis of the Court's assessment, I see no reason why the consent orders, as agreed to between the parties, should not be entered into and therefore the orders of the Court in this matter are:
1. The appeal in respect of the property known as 112-116 Lighthouse Road, Byron Bay, is upheld.

2. The development application submitted to Byron Shire Council, and as amended for 10 town houses, is approved
subject to the conditions in Annexure ‘A’ hereto.

3. The exhibits, except for the condition and the plans, are returned.

_______________________
J S Murrell
Commissioner of the Court
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