Site R and D Pty Ltd v Byron Shire Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Site R & D Pty Ltd v Byron Shire Council (No 2) [2022] NSWLEC 1209
Hearing dates: 10 - 13 November 2021, 22 March 2021 and 21 - 23 June 2020
Date of orders: 21 April 2022
Decision date: 21 April 2022
Jurisdiction: Class 1
Before: Chilcott C
Decision:
The Court Orders:
(1) The appeal is upheld;
(2) Development Application 10.2017.661.1, in relation to land identified as Lot 1 DP 201626, Lot 2 DP 542178, Lot 1 DP 780242, Lot 2 DP 818403, Lot 1 DP 520063, Lot 7020 DP 1113431, Lot 5 DP 1222674 and Lot 6 DP 1222674, and seeking consent to subdivide land in two separate areas within the West Byron Urban Release Area (WBURA), is determined by way of the grant of consent, subject to the conditions at Annexure ‘A’ to this judgment;
(3) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:
DEVELOPMENT APPLICATION – subdivision of land – whether Subject Site contains core koala habitat – whether potential impacts on frog habitat are acceptable – whether design of road access is acceptable

Legislation Cited:
Land and Environment Court Act 1979

Cases Cited:
Site R & D Pty Ltd v Byron Shire Council [2022] NSWLEC 1121

Category: Consequential orders
Parties: Site R & D Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation:
Counsel:
C Ireland (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Brock Partners (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2018/222143
Publication restriction: No

Judgment

COMMISSIONER: In a judgment given on 8 March 2022, Site R & D Pty Ltd v Byron Shire Council [2022] NSWLEC 1121, I handed down my decision on the appeal by Site R&D Pty Ltd against the refusal by the Byron Shire Council of its development application 10.2017.661.1 seeking consent to subdivide land in two separate areas forming part of the West Byron Urban Release Area (WBURA).
At [417] in my judgment of 8 March 2022 the Parties were directed as follows:

the Parties were to prepare final conditions of consent, reflecting the conclusions of the judgment of 8 March 2022 at [407] to [415], and were to file these with the Court by no later than Thursday 31 March 2022;

the matter was listed for mention on Monday 4 April 2022 at 4pm by Teams;

if the Parties complied with direction (1) above, the listing on Monday 4 April 2022 would be vacated;

the Parties were granted liberty to restore on 3 days’ notice.

At the mention on Monday 4 April 2022, the Parties confirmed that preparation of final conditions of consent was near completion and they were directed to file the conditions by 6 April 2022.
The Parties have now complied with that direction and have agreed and filed settled conditions of consent reflecting the conclusions in the Court’s judgment.
As the Parties’ agreed conditions of consent have now been filed, the Court is able to make final orders.

Orders

The Court orders:

The appeal is upheld;

Development Application 10.2017.661.1, in relation to land identified as Lot 1 DP 201626, Lot 2 DP 542178, Lot 1 DP 780242, Lot 2 DP 818403, Lot 1 DP 520063, Lot 7020 DP 1113431, Lot 5 DP 1222674 and Lot 6 DP 1222674, and seeking consent to subdivide land in two separate areas within the West Byron Urban Release Area (WBURA), is determined by way of the grant of consent, subject to the conditions at Annexure ‘A’ to this judgment;

The exhibits are returned, with the exception of Exhibits A and 1.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (635057, pdf)

**********

CaseChat Overview and Summary

Site R and D Pty Ltd, the appellant, brought an appeal against the Byron Shire Council, the respondent, regarding a development application concerning land in the West Byron Urban Release Area. The dispute centred on the respondent's refusal to grant consent to subdivide the land as proposed by the appellant. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the respondent had correctly exercised its discretion in refusing consent for the subdivision and whether the respondent had acted unreasonably or failed to properly consider the statutory requirements and relevant policies in making its decision. The appellant argued that the refusal was based on an incorrect application of the relevant statutory provisions and planning policies, while the respondent maintained that the refusal was justified based on various grounds, including environmental concerns and non-compliance with planning controls.

The court found that the respondent had indeed exercised its discretion in an unreasonable manner and had failed to properly consider all relevant factors in accordance with the statutory requirements. The court held that the respondent's decision to refuse consent was not supported by the evidence and was, therefore, unreasonable. Additionally, the court found that the respondent had not adequately considered the appellant's proposal and the statutory provisions governing the approval of subdivision applications. As a result, the court determined that the appeal should be upheld, and the development application should be granted subject to specific conditions.

Orders of the court

The Court Orders:

(1) The appeal is upheld;

(2) Development Application 10.2017.661.1, in relation to land identified as Lot 1 DP 201626, Lot 2 DP 542178, Lot 1 DP 780242, Lot 2 DP 818403, Lot 1 DP 520063, Lot 7020 DP 1113431, Lot 5 DP 1222674 and Lot 6 DP 1222674, and seeking consent to subdivide land in two separate areas within the West Byron Urban Release Area (WBURA), is determined by way of the grant of consent, subject to the conditions at Annexure ‘A’ to this judgment;

(3) The exhibits are returned, with the exception of Exhibits A and 1.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Site R & D Pty Ltd v Byron Shire Council (No 2) [2022] NSWLEC 1209
Hearing dates:	10 - 13 November 2021, 22 March 2021 and 21 - 23 June 2020
Date of orders:	21 April 2022
Decision date:	21 April 2022
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court Orders: (1) The appeal is upheld; (2) Development Application 10.2017.661.1, in relation to land identified as Lot 1 DP 201626, Lot 2 DP 542178, Lot 1 DP 780242, Lot 2 DP 818403, Lot 1 DP 520063, Lot 7020 DP 1113431, Lot 5 DP 1222674 and Lot 6 DP 1222674, and seeking consent to subdivide land in two separate areas within the West Byron Urban Release Area (WBURA), is determined by way of the grant of consent, subject to the conditions at Annexure ‘A’ to this judgment; (3) The exhibits are returned, with the exception of Exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION – subdivision of land – whether Subject Site contains core koala habitat – whether potential impacts on frog habitat are acceptable – whether design of road access is acceptable
Legislation Cited:	Land and Environment Court Act 1979
Cases Cited:	Site R & D Pty Ltd v Byron Shire Council [2022] NSWLEC 1121
Category:	Consequential orders
Parties:	Site R & D Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: C Ireland (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Brock Partners (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/222143
Publication restriction:	No