Site R and D Pty Ltd v Byron Shire Council

[2021] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation:

Site R & D Pty Ltd v Byron Shire Council [2021] NSWLEC 1226

Hearing dates:

23 and 30 April 2021

Date of orders:

5 May 2021

Decision date:

05 May 2021

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [7]

Catchwords:

NOTICE OF MOTION – application to amend development application – further amended statement of facts and contentions – further expert evidence adduced – costs

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Procedural rulings

Parties:

Site R & D Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
P Hudson (Solicitor)(Respondent)

Solicitors:
Brock Partners (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2018/222143

Publication restriction:

No

Judgment

1. COMMISSIONER: By notice of motion, the Applicant seeks leave to further amend its development application 10.2017.661.1 in this appeal in response to matters that had arisen during the course of the proceedings.

2. The appeal concerns the Respondent’s refusal of the Applicant’s development application to subdivide land in two separate areas forming part of the West Byron Urban Release Area, Byron Bay.

3. Affidavits accompanying the notice of motion from Mr Anthony Griffiths, which the Applicant reads in the proceedings, confirm that the Applicant’s proposed amended plans have sought to be responsive to matters that have arisen in the proceedings including the granting of leave for amended plans contained within an exhibit (exhibit C) in the proceedings and preparation of supplementary joint expert reports previously adduced by the Court in relation to the Exhibit C plans.

4. The Applicant’s further amended plans upon which it now seeks to rely concern road works required to provide access to so-called proposed lots 11 and 12 within its proposed subdivision plans, and the integration of that required access with certain works, including roads, approved for an adjoining development on what is known as the Villa World Development (on occasion referred to as the Harvest Estate Development).

5. The Respondent submits that:

1. the further proposed amended plans may give rise to potential impacts that have yet to be assessed and considered in the proceedings, most relevantly in relation to the potential acoustic impacts of trucks on future residential subdivision areas on the Subject Site and on the adjoining Villa World Development;

2. it does not oppose the grant of leave to the Applicant in respect of its further amended plans but seeks that orders are made to adduce further evidence by the Parties’ acoustic experts concerning the potential impacts identified above (at [5(1)]); and

3. an order should be made that the Applicant pay its costs thrown in dealing with the Applicant’s further amended plans.

6. The Applicant does not oppose the payment of the Respondent’s costs, as agreed or assessed, and embraces the Respondent’s proposal that further supplementary evidence be adduced from the Parties’ acoustic experts.

7. As a consequence, the Court makes the following orders:

1. The Applicant be granted leave to amend Development Application 10.2017.661.1 to rely upon the following amended documents as annexed at Annexure “B” (unmarked set of amended plans for Stage 11 and 12) and Annexure “C” (Abbott & Macro amended plan of subdivision) of the affidavit of Anthony Charles Griffiths sworn 1 April 2021 filed with this Notice of Motion (and including the works shown on Melaleuca Drive):

1. Abbott and Macro Plan 15024-9R Sheet 2 of 9 dated 2 February 2021;

2. Figure 8.1 – Issue M;

3. Figure 15.1 – Issue Q;

4. Plan W1 – Issue E;

5. Plan W2 – Issue E

2. In addition to Order (1) above, the Applicant be granted leave to amend its development application Development Application 10.2017.661.1 to rely in this appeal upon the following Plans approved for the Harvest Estate in Land and Environment Court judgment Villa World Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1612 on 8 December 2020 as development consent DA 10.2017.201.1, in relation to the Villa World Road 01 [Bayshore Drive] only:

1. 0200 Rev B Finished Surface Cut Fill Plan, Sheet 1 of 2 [earthworks    cut/fill at Road 01];

2. 0210 Rev B Earthworks Plan Sheet 1 of 6 [shows Road 01 and Section D marker];

3. 0230 Rev A Retaining Wall Sections [Section D];

4. 0300 Rev C Road and Drainage Plan Sheet 1 of 6 [shows ROAD 01 and swales 10 and 11];

5. 0310 Rev C Typical Road Sections Sheet 1 of 7 [shows ROAD 01 Collector Road chainage 0 to 474];

6. 0320 Rev B ROAD 01 Longitudinal Section Sheet 1 of 2 [shows ROAD 01 longitudinal section];

7. 0420 Rev A Typical Swale Sections [shows swales 10 and 11];

8. 0440 Rev A Bio-Retention Basin and Bio-Swale Typical Details [shows bioretention swale typical section]; and

9. 0450 Rev A Plan of Swales Sheet 1 of 2 [shows ROAD 01 grassed swale (swales 10 and 11) and bio-retention swale.

3. The Parties’ acoustic experts commence further joint conferencing by 7 May 2021, and file and serve a supplementary acoustic joint report by 21 May 2021.

4. The Respondent file and serve a Further Amended Statement of Facts and Contentions removing any issues that have been resolved and only adding any issues raised by the Respondent’s experts in the Supplementary Joint Reports filed to date by 14 May 2021.

5. The Respondent to file and serve Second Further Amended Statement of Facts and Contentions including any unresolved acoustic issues arising from the joint conferencing of the acoustic experts by 28 May 2021.

6. The Respondent file and serve its draft Without Prejudice Conditions in response to the Applicants proposed conditions annexed to the affidavit of Anthony Charles Griffiths filed with this Notice of Motion (as amended), by 28 May 2021.

7. The Applicant to pay the costs of the Respondent thrown away as a result of the amendment granted in Orders 1 and 2 above, pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

……………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 05 May 2021