Thomas Hilton Mooney and Cathryn Anne Mooney v Byron Shire Council
[2005] NSWLEC 352
•06/30/2005
Land and Environment Court
of New South Wales
CITATION: Thomas Hilton Mooney and Cathryn Anne Mooney v Byron Shire Council [2005] NSWLEC 352
PARTIES: APPLICANT:
Thomas Hilton Mooney and Cathryn Anne Mooney
RESPONDENT:
Byron Shire CouncilFILE NUMBER(S): 11455 of 2005
CORAM: Watts C at 1
KEY ISSUES: Development Application :- Car parking and
quantum of contributionsLEGISLATION CITED: Byron Shire Council Local Environment Plan 1988, (BSLEP)
North Coast Regional Environmental Plan, (NCREP)
Byron Shire Council Local Environment Plan 1988, (BSLEP)
Byron Shire Council Development Control Plan 2002, (BSDCP2002)
Byron Shire Council Development Control Plan 12 - Bangalow, (BSDCP)
Byron Shire Council s94 Contributions Plan 2003, Contribution plan
Environmental Planning and Assessment Act 1979, ss 79C and 97DATES OF HEARING: 30/06/2005 EX TEMPORE JUDGMENT DATE: 06/30/2005
LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr J Johnson, barrister instructed by Mr J Hertzber, solicitor
SOLICITORS:
Hertzberg Heydon Solicitors &Attorneys
Ms K Gerathy, solicitor
SOLICITORS:
Abbott Tout Solicitors
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
30 June 2005
11455 of 2005 - Thomas Hilton Mooney and Cathryn Anne Mooney v Byron Shire Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Byron Shire Council (the council) to conditionally approve a development application to alter and add to an existing hotel the ‘Bangalow Hotel’ at Lot 1 DP 105901, being No 1 Byron Street, Bangalow. The applicant originally disputed some of the conditions of that consent.
2 The parties have reached agreement and the application was dealt with by consent award.
3 I have concluded that the application, on the terms agreed, may be upheld when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the southern side of Byron Street on the northwestern side of the commercial/ retail centre of Bangalow. Erected on the land is the ‘Bangalow Hotel’, a three-storey building with associated car parking areas. The North Coast railway corridor is situated near to the north.
5 Access to the site is available from both Byron Street to the south and from an unnamed laneway to the west.
6 Commercial development adjoins the land to the east and south.
Relevant planning controls
Byron Shire Council Local Environment Plan 1988, (BSLEP)
7 Under the provisions of the BSLEP the land is zoned No 3(a)(Business Zone) and the proposal is permissible with consent.
8 The land is located in the Bangalow Heritage Precinct as defined by BSLEP.
State Environmental Planning Policy 55 - Remediation of Land, (SEPP55)
9 SEPP55 applies to the land.
North Coast Regional Environmental Plan, (NCREP)
10 Under the NCREP cl 34 is important.
Byron Shire Council Local Environment Plan 1988, (BSLEP)
11 Under the provisions of the BSLEP the important clauses generally and in particular are:
· Clause 9 - Objectives of zone 3(a)(Business zone);
· Clauses 18, 19 and 21 - Heritage issues;
· Clause 40 - height control: and
· Clause 45 - adequate arrangements for sewerage, drainage and water services.
12 Particularly important elements of the BSDCP include:
· D2.1 Location and function;
· D2.2 Scale and appearance;
· D2.5 Setback from street;
· D2.8 Disability access;
· G2.1 Parking schedules;
· G2.2 Parking layout;
· G2.3 Design access and construction (parking areas); and
· H6.1 Landscaping of commercial premises.
Byron Shire Council Development Control Plan 12 - Bangalow, (BSDCP)
13 The BSDCP applies to the land generally and, in particular s 4 – Heritage applies.
Byron Shire Council s94 Contributions Plan 2003, (Contribution plan)
14 The Contribution plan applies to the land.
The proposal and its history
15 Development application No 10.2002.581.1 was lodged with the respondent council on 8 October 2002 to alter and add to an existing hotel building, known as ‘Bangalow Hotel’ on the land. The proposed works include:
1. addition of about 132m2 of partly covered timber deck area on the eastern elevation of the building;
2. addition of about 28m2 elevated timber walkway linking the proposed new deck to the existing deck on the northern elevation of the building;
3. extension of an existing timber deck on the northern elevation adjacent to the north-western corner of the building by about 16m ;
4. demolition of an existing external steel staircase linking the three levels of the building;
5. addition of a new external steel staircase linking the three levels of the building on the northern elevation;
6. addition of a 13.4m2 suspended timber walkway beneath the proposed new deck on the eastern elevation;
7. addition of timber bi-fold doors on the southern elevation of the building opening onto the Byron Street footpath area;
8. addition of timber bi-fold doors and servery on the eastern elevation of the building opening onto the new deck area; and
9. formalisation and extension of existing car parking area located within the northeastern corner of the allotment.
16 The Statement of Environmental Effects submitted with the development application indicated that the new 132m2 deck area is to be located adjacent to the existing indoor dining room of the hotel to allow “…easy service of coffee, snacks, breakfast etc.”
Notification
17 The application was notified in first instance to nearby owners and occupants and the council received no submissions. No further advertising was therefore necessary.
The council’s decision
18 By notice dated 2 December 2003, the council conditionally approved the application and some of the conditions were in dispute including the on-site car parking requirements and s 94 contributions quantum.
The hearing
19 The appeal was filed on 25 November 2004.
20 Mr R S Darney, Director Environment Planning & Development at Byron Shire Council prepared the statement of basic facts.
The issues
21 On 11 February 2005 the applicant filed a statement of issues.
1. Whether conditions 5, 7 and 8 fairly and reasonably relate to the proposed development.
2. Whether conditions 5, 7 and 8 are so unreasonable that no reasonable planning authority could have imposed them.
3. Whether the proposed development provides any area for patron dining and drinking in addition to the area already available for patron dining and drinking.
4. Whether the proposed development involves any increase in demand for car parking on the site.
5. Whether the proposed development involves any increase in demand for sanitary or bathing facilities on the site.
6. Whether the proposed development involves any increase in demand for civic, and urban improvements and administration.
7. Whether clause 3.10 of the Council's Contributions Plan is valid.
8. Whether it is proper to have regard to the Council's purportedly adopted Schedule of Fees and Charges for 2003/2004.
9. Whether it is proper to have regard to the Council's purportedly adopted Schedule of Fees and Charges for 2004/2005.
10. Whether the levies and contributions sought by the Council are reasonable, and whether they are unreasonable, even if determined in accordance with the Contributions Plan.
22 The validity of the council’s s 94 Contribution plan was originally disputed and this was not pressed at the appeal. Whether the conditions are for a planning purpose was also not pressed. The salient issues related only to merit issues and whether the council require too many car parking spaces. The quantum of the contributions to be paid under the consent was also in dispute but is now resolved.
The evidence and findings
Car parking and quantum of contributions.
23 The parties have now reached agreement on these questions. The application is considered by me to be reasonable when assessed on merit under s 79C of the Environmental Planning and Assessment Act 1979 and the appeal is upheld.
Conditions
24 The conditions are those in Exhibit 2.
Consent orders
25 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 10.2002.581.1 lodged with the respondent council on 8 October 2002 to alter and add to an existing hotel, being the ‘Bangalow Hotel’ at Lot 1 DP 105901, being No 1 Byron Street, Bangalow, is approved subject to Conditions 1 to 38 in Annexure A.
3. The exhibits with the exception of Exhibits A and 2 are returned.
4. No order as to costs.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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