Smollen v Byron Shire Council

[2023] NSWLEC 1043

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smollen v Byron Shire Council [2023] NSWLEC 1043

Hearing dates:

Conciliation conference on 30 and 31 January 2023

Date of orders:

07 February 2023

Decision date:

07 February 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)      the appeal is upheld.

(2)     Development consent is granted to Development Application DA10.2022.249.1 for construction of a swimming pool and four decks in association with an approved dwelling house on the land at 8 Border Street, Byron Bay subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7, Schs 1, 2

Byron Local Environmental Plan 1988, cll 2, 2A, 40, 45, 63

Byron Local Environmental Plan 2014, cl 1.3

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environment Planning and Assessment Regulation 2021, s 38
Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: Basix) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 4.6

Texts Cited:

Byron Development Control Plan 2014

Byron Shire Council, Community Participation Plan, 2019

Category:

Principal judgment

Parties:

Rebecca Smollen (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/265996

Publication restriction:

No

Judgment

1. COMMISSIONER: Rebecca Smollen (the Applicant) has appealed the refusal by Byron Shire Council (the Respondent) of Development Application 10.2022.249.1, made with owner’s consent, seeking consent for construction of a swimming pool and four decks in association with an approved dwelling house (the proposed Development) at 8 Border Street, Byron Bay (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was not required to be notified under the provisions of Byron Shire Council’s Community Participation Plan.

4. On 30 and 31 January 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions. A site inspection had been undertaken prior to the commencement of the conciliation conference.

5. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. the Subject Site is identified as containing littoral rainforest and is located within the proximity area for littoral rainforest on the Coastal Wetlands and Littoral Rainforests Area Map under the provisions of Ch 2 of SEPP R&H), and in relation to this.:

1. the Proposed Development is not located within the mapped area for “coastal wetlands” or “littoral rainforest” and is therefore not designated development pursuant to s 2.7 of the SEPP R&H;

2. the Subject Site is also identified as being within the SEPP’s Coastal Environment Area of the Coastal Environment Area Map, and s 2.10 of SEPP R&H provides:

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following -

(a)    the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b)    coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d)    marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e)    existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f)    Aboriginal cultural heritage, practices and places,

(g)    the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a)    the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b)    if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c)     if that impact cannot be minimised—the development will be managed to mitigate that impact.

3. the Subject Site is identified as being within the Coastal Use area of the Coastal Use Area Map and s 2.11 of the Resilience SEPP provides:

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority -

(a)    has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)    existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)    overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)    the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)    Aboriginal cultural heritage, practices and places,

(v)    cultural and built environment heritage, and

(b)    is satisfied that—

(i)    the development is designed, sited and will be managed

to avoid an adverse impact referred to in paragraph (a), or

(ii)    if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii)    if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c)    has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

4. the Parties’ ecologists have undertaken an assessment of the Subject Site and have confirmed that the Proposed Development will not cause an adverse impact having regard to the matters in subss 2.10(1)(a), (b) and (d), and will not impact upon the water quality of the ocean or wetlands.

5. the expert ecologists have also advised that, if required, the pool is to be drained to the sewer, and so the Proposed Development will not impact on any public open space or on public access to and along the beach;

6. further, the Parties have confirmed that the Subject Site is not listed as having any item of Aboriginal cultural heritage on the Aboriginal Heritage Information Management System (AHIMS) register and the proposal will not have any impact on Aboriginal cultural heritage, practices and place;

7. the Parties’ agreed conditions of consent include an unexpected finds protocol in the event that the any excavation at the base of the pool results in such a find.

8. the Parties have agreed, and I am satisfied, that the Proposed Development been designed, sited and will be managed, through operation of a Biodiversity Conservation Management Plan (BCMP) to avoid any potential adverse impacts identified, and those matters requiring consideration under ss 2.10(1) and 2.11(1) of SEPP R&H have been considered, including having regard to the location of the decks and pool, the consequences of proposed filling and maintenance works, and the proximity of those works to any littoral rainforest or Stinking Cryptocarya plants;

9. the Parties have also confirmed, and I am satisfied, that the location of the pool and decks will not impact on the surf zone, and

10. the Proposed Development will not overshadow any public place or impact any views, and because its bulk, scale and size is consistent with that of adjacent approved dwellings, particularly those to the north west, and as it is consistent with applicable controls in terms of building bulk, I am satisfied that the requirements of s 2.11(1) of SEPP R&H have been fulfilled;

2. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this:

1. the Applicant provided, as part of its application for the already approved dwelling, a Preliminary Site Investigation for Proposed Dwelling Lots 7, 8 & 9 Section 1 DP 1623 Border Street prepared by Tim Fitzroy and Associates and dated 13 February 2012 which concluded that the Subject Site was suitable for its intended residential use; and therefore

2. I am satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal;

2. In relation to the provisions of the Biodiversity Conservation Act 2016 (the BC Act):

1. the Subject Site contains littoral rainforest, which is a part of a larger patch of littoral rainforest which extends into several private properties to the east and which covers approximately 0.83ha. Littoral rainforest is representative of plant community type (PCT) 1275 Tuckeroo – Riberry- Yellow Tulipwood littoral rainforest of the NSW North Coast, Sydney Basin and South-East Corner Bioregions as listed in Schedule 2 of the BC Act;

2. the littoral rainforest on the Subject Site is characteristic of the threatened ecological community (TEC) “Littoral Rainforest in the New South Wales North Coast, Sydney Basin and South East Corner Bioregions” as listed in the BC Act;

3. the stand of littoral rainforest on the northern side of the Subject Site contains specimens of Stinking Cryptocarya (Cryptocarya foetida), which is identified as a “vulnerable species” in Sch 1 of the BC Act;

4. the Applicant has provided a ‘5 part test’ prepared by its ecologist, Mr Ian Colvin of ReconEco (and previously of Australian Wetlands Consulting), pursuant to Pt 7 of the BC Act;

5. the Applicant’s ‘5 part test’ assesses the potential impact of the Proposed Development on the littoral rainforest and Stinking Cryptocarya on the Subject Site, as well as an assessment of other flora and fauna species, that may be present on the Subject Site and concludes that the Proposed Development is unlikely to significantly impact any threatened species or ecological communities or their habitats;

6. on the basis of the above, I am satisfied that the provisions of the BC Act as they pertain to the Proposed Development are satisfied;

3. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: Basix) 2004 (SEPP BASIX), the Applicant has provided an amended BASIX certificate (No. A486568 dated 29 January 2023) in fulfilment of the requirements of SEPP BASIX.

4. in relation to the provisions of Byron Local Environmental Plan 2014 (BLEP 2014)

1. the Subject Site is identified as a “deferred matter” on the Land Application Map made under BLEP 2014;

2. the provisions of cl 1.3(1A) provide that BLEP 2014 does not apply to land identified as a ‘deferred matter’ on the Land Application Map, and the proposed Development is subject to the provisions of the previous instrument being Byron Local Environmental Plan 1988 (BLEP 1988);

5. in relation to the provisions of BLEP 1988:

1. the Proposed Development is for alterations and additions to an approved dwelling house, and the Subject Site is zoned 7(f2) (Urban Coastal Lands (f2) Zone) and development for the purpose of a dwelling house is permissible with consent in Zone 7 (f2);

2. the aims, objectives and guiding principles of BLEP 1988 are set out in cl 2, and in relation to these:

1. the provisions cl 2A require that the consent authority be satisfied that the development is consistent with the aim, objectives and guiding principles of the LEP and shall have regard to a number of strategies, policies and studies adopted by the Council;

2. the aims, objectives and guiding principles of BLEP are to ensure that the orderly and economic use of land is balanced with a requirement for any development to minimise any potential impacts on the environment; and

3. having regard to the location of the Proposed Development, and noting the Applicant’s provisions of a BCMP, the Parties have submitted, and I am satisfied, that the Proposed Development is consistent with the aims, objectives and guiding principles of BLEP 1988;

3. the provisions of cl 40 of BLEP 1988 in relation to height require that the height not exceed the development standards applicable to development on the Subject Site, and the Proposed Development is compliant with these standards which are:

1. the floor of the topmost floor level of the building must not exceed 4.5, above the existing ground level; or

2. the vertical distance between the topmost part of the building and the existing ground level below should not exceed 9m;

4. the provisions of cl 45 of BLEP 1988 require the consent authority to be satisfied that adequate arrangements have been made for the provision of sewerage, drainage and water services to the land, and I am satisfied that the Subject Site will be serviced by sewer and water and adequate drainage for the site in in place;

5. the Subject Site is identified on Council’s Acid Sulfate Soils Map, as “Class 5”, and the provisions of cl 63 of BLEP 1988 do not apply, as the Proposed Development will not lower the water table by 1m AHD;

6. in relation to the provisions of Byron Development Control Plan 2010 (BDCP):

1. the Parties have considered the provisions of BDCP as a focal point to the assessment of the application, and in relation to this:

1. the Applicant’s proposed deck structures are consistent with setback requirements in Part C2.6 of BDCP;

2. the Applicant’s proposed earthworks are consistent with the provisions of Part C2.7 of BDCP;.

2. the Applicant’s development application has also been assessed pursuant to Part J (Coastal Erosions Lands) of BDCP, and in relation to this:

1. the Applicant’s removability plan demonstrates how the proposed pool and decks will be removed consistent with the existing approved removability plan; and

2. the Parties’ agreed conditions propose that the removability plans be consolidated into one plan prior to issue of a construction certificate to ensure that there is no confusion in the implementation of the plans; and

3. the Parties have advised, and I am satisfied, that the Applicant’s amended development application is satisfactory having regard to the remaining provisions of the BDCP and the provisions of s 4.15(1)(a)(iii) of the EP&A Act;

7. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. regard has been had to the objectives of the Subject Site’s zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

9. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

11. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

12. The Court notes that the Respondent approves under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (the EP&A Regulation) the Applicant amending Development Application 10.2022.249.1 in the following respects:

1. the inclusion of architectural drawings in replacement of corresponding earlier drawings as follows:

Drawing No.	Rev.	Title	Date
A102	11	Proposed Ground Floor Plan	30 January 2023
A301	02	Sections	30 January 2023

2. the inclusion of engineering drawings in replacement of corresponding earlier drawings as follows:

Drawing No.	Issue	Title	Date
1.0	P2	Construction Notes Sheet 1	27 January 2023
1.1	P2	Construction Notes Sheet 2	27 January 2023
1.2	P2	Safety Design Report	27 January 2023
2.0	P2	Pool & Decks Plan	27 January 2023
2.1	P2	Pool Detail Sheet 1	27 January 2023

3. the inclusion of “Removability Plan for Proposed New Swimming Pool, Spa and Surrounding Timber Deck” prepared by Ingineered dated 23 January 2023 in replacement of “Removability Plan for Proposed New Swimming pool and surrounding timber deck” dated 30 November 2022;

4. the inclusion of revised BASIX certificate (No. A486568 dated 29 January 2023) in replacement of an earlier certificate;

5. the inclusion of an arboricultural impact assessment report prepared by Northern Tree Care dated 27 January 2023 in replacement of the earlier arboricultural impact assessment report;

6. the inclusion of a Biodiversity Conservation Management Plan prepared by ReconEco dated 31 January 2023 in replacement of the earlier biodiversity conservation management plan;

7. the inclusion of “Test of Significance – Proposed Pool and Decks”, prepared by ReconEco, dated 27 January 2023.

Orders

13. The Court orders that:

1. the appeal is upheld;

2. development consent is granted to Development Application 10.2022.249.1 for construction of a swimming pool and four decks in association with an approved dwelling house on the land at 8 Border Street, Byron Bay subject to the conditions set out in Annexure ‘A’.

M Chilcott

Commissioner of the Court

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Annexure A

Decision last updated: 07 February 2023