Villa World Byron Pty Ltd v Byron Shire Council

[2020] NSWLEC 1612

Land and Environment Court

New South Wales

Medium Neutral Citation:

Villa World Byron Pty Ltd v Byron Shire Council [2020] NSWLEC 1612

Hearing dates:

Conciliation conference on 6,10 and 19 November 2020

Date of orders:

8 December 2020

Decision date:

08 December 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [41]

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016

Biodiversity Conservation (Savings and Transitional) Regulation 2017

Byron Local Environmental Plan 1988

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Rural Fires Act 1997

State Environmental Planning (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (Koala Habitat Protection) 2019

State Environmental Planning Policy No. 44 – Koala Habitat

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 14 – Coastal Wetlands

State Environmental Planning Policy No 26 – Littoral Rainforest

Threatened Species Conservation Act 1995

Texts Cited:

Biolink, Byron Coast Koala Habitat Study, 2012

Byron Development Control Plan 2014

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

NSW Department of Planning, Development near Rail Corridors and Busy Roads - Interim Guideline, 2008

Planit Consulting, Terrestrial Flora & Fauna Assessment Harvest Estate, West Byron, August 2020

Category:

Principal judgment

Parties:

Villa World Byron Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
S Vatala (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
Dentons (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/310612

Publication restriction:

No

Judgment

1. COMMISSIONER: Villa World Byron Pty Ltd (the Applicant) has appealed the refusal by Byron Shire Council (the Respondent) of its development application 10.2017.201.1, made with the owners’ consent, seeking approval for the subdivision of land in nine stages, including residential lots, and green infrastructure lots, along with associated works including vegetation removal, earthworks, landscaping, creation of public reserves, environmental management and protections works and stormwater works (the Proposed Development) at 342 Ewingsdale Road and 22A and 22B Melaleuca Drive, Byron Bay (the Subject Site).

2. The Parties have advised that:

1. the proposed environmental management and protection works will occur on the large lifestyle lots, being proposed Lots 146 - 149;

2. conditions of consent require the maintenance of those works for the life of the development which will be secured by a registered covenant on the title for each of those lots;

3. the securing of environmental obligations is a requirement of the Biodiversity Conservation Management Plan which is referenced in agreed conditions 51 and 35;

4. the proposed environmental management and protection works are important to ensure the protection of the Wallum Froglet (Crinia tinnula) and Wallum Sedge-frog (Litoria olongburensis), both of which species are listed as vulnerable species under the Threatened Species Conservation Act 1995, and which, although repealed, continues to apply to the Proposed Development.

3. The Parties further advise that the Applicant’s proposed staged subdivision of the Subject Site will facilitate, for those existing allotments adjacent to the Subject Site, continued access to the existing dedicated roads including Melaleuca Drive, Ewingsdale Road, and/or access through the new dedicated road network which connects to the Bayshore Drive/Ewingsdale Road roundabout.

4. The Subject Site forms part of the so-called “West Byron Bay site” subject to the provisions in Part 4 of the Byron Local Environmental Plan 1988 (BLEP 1988). The following land use zones apply to the Subject Site:

1. Zoning pursuant to West Byron Bay – Land Zoning Map, and subject to the West Byron Bay site provisions of BLEP 1988:

1. R2 Low Density Residential;

2. E2 Environmental Conservation;

3. E3 Environmental Management;

4. RE1 Public Recreation;

2. ‘Residual Land’ (that part of the Subject Site not subject to the West Byron Bay provisions of BLEP 1988):

1. 7(a) Wetlands

2. 7(b) Coastal Habitat

3. 1(a) General Rural

5. The subdivision of land and associated works, on the various lands as proposed by the Applicant, are permissible under the relevant zonings applicable to the Subject Site under BLEP 1988.

6. The appeal comes to the Court pursuant to 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 proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act.

7. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 6 and 10 November 2020, and I presided over that conciliation conference.

8. I had presided over a previous conciliation conference between the Parties, commencing on 20 August 2020, and which was terminated on 12 October 2020. I conducted a view of the Subject Site at the commencement of that conciliation conference.

9. The conciliation conference on 6, 10 and 19 November was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy and no site view was undertaken during that conference.

10. At the conciliation conference on 6, 10 and 19 November 2020, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

11. 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.

Jurisdictional prerequisites

12. There are Jurisdictional prerequisites in relation to which I must be satisfied before the Applicant’s development application can be determined pursuant to the provisions of s 4.16 of the EP&A Act. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings, and the manner in which they have been addressed, are as follows:

Byron Local Environmental Plan 1988

13. The Subject Site is identified as a Deferred Matter under Byron Local Environmental Plan 2014 (BLEP2014). Pursuant to cl 1.3(1A) of BLEP 2014, that plan does not apply to the Subject Site, and its determination is pursuant to the provisions of Byron Local Environmental Plan 1988 (BLEP 1988), as follows:

1. following subdivision of the Subject Site, as proposed by the Applicant, the proposed lots would not have a size that is less than the minimum size shown on the Minimum Subdivision Lot Size provisions of cl 81 of BLEP 1988, which states that:

1. a minimum lot size of 450m² applies within lands that form part of the R2 Low Density Residential zone footprint within the Proposed Development;

2. there is no prescribed minimum lot size within the RE1 zone footprint within the Proposed Development; and

3. a 40ha minimum lot size otherwise applies throughout the Subject Site.

2. the Subject Site is located within the coastal zone as referred to in cl 88 of BLEP 1988. The Parties are satisfied, and I accept, that the matters set out in cl 88(2) of the BLEP 1988 have been considered and the Proposed Development (as amended) has satisfied the requirements of cl 88(3) of BLEP 1988;

3. a Cultural Heritage Assessment was provided as part of the Applicant’s Statement of Environmental Effects that accompanied its development application , and the Parties advise, and I am satisfied, that, as required under the provisions of cl 92 of BLEP 1988:

1. the effects of the Proposed Development on any items or areas of heritage significance have been considered; and

2. the Proposed Development will not have an adverse impact on items or areas of Aboriginal cultural heritage significance that may be on the Subject Site.

4. the Subject Site is included within the Acid Sulfate Soils Map referred to within cl 97(2) of BLEP 1988, and the Parties are satisfied, and I accept, that the Acid Sulfate Soils Management Plan submitted with the Applicant’s Proposed development application has fulfilled the requirements of cl 97(3) of BLEP 1988.

5. the Subject Site is identified as a “flood planning area” on the Flood Planning Map referred to within cl 98 of BLEP 1988, and the Parties advise that:

1. a Flood Impact Assessment Report prepared by BMT, dated June 2020, has been prepared; and

2. they are satisfied, and I accept, that the proposed development, having regard to cl 98(3) of BLEP 1988:

1. is compatible with the flood hazard of the land;

2. is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties;

3. incorporates appropriate measures to manage risk to life from flood;

4. is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses; and

5. is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

6. a Satisfactory Arrangements Certificate has been issued by a delegate of the Secretary of the Department of Planning and Environment in accordance with the provisions of cl 99 of BLEP 1988;

7. the Parties advise, and I am satisfied, that any public utility infrastructure that is essential for the Proposed Development is available, or that adequate arrangements have been made to make that infrastructure available, when it is required to each proposed allotment as part of the Applicant’s Proposed Development (as amended) within the Subject Site, in satisfaction of the provisions of cl 100 of BELP 1988;

8. Chapter E8 of the Byron Shire Development Control Plan 2014 which applies to the West Byron Urban Release Area:

1. provides for the matters specified in clause 101(3) of BLEP 1988; and

2. has been prepared and adopted by Byron Shire Council, in satisfaction of the requirements of cl 101(2) of BLEP 1988.

State Environmental Planning Policy No 55 – Remediation of Land

14. Pursuant to the provisions of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) the Parties have advised, and I am satisfied, that:

1. a report setting out the results of a preliminary investigation of the Subject Site, in accordance with the contaminated land planning guidelines, was prepared and has been provided to the Respondent within the Detailed Site Investigation (Soil & Groundwater Assessment), prepared by ENV Solutions, dated May 2018, and which has been considered in relation to the Proposed Development;

2. the preliminary investigation report concluded that, whilst the majority of the Subject Site is suitable in its current state for the purpose of residential subdivision, some areas of soil containing lead contamination concentrations greater than the NEPM HIL-A level was found in the vicinity of proposed lots 129-132 and 140-144;

3. those parts of the Subject Site contaminated by lead are not suitable in their current state for residential subdivision and are required to be remediated through the preparation and implementation of a Remediation Action Plan (RAP) prior to the issue of a subdivision certificate for that stage of the Proposed Development;

4. a proposed condition of consent (proposed condition 14) has been agreed by the Parties for imposition with any consent for the Proposed Development and this requires that a RAP be prepared and submitted to Council at least 30 days before remedial work commences in the vicinity of proposed lots 129-132 and 140-144;

5. any remedial work must be completed and validated in accordance with the RAP, and a notice of completion must be submitted to Council before any other works commence;

6. as a consequence, I am satisfied that, for that part of the Subject Site that is contaminated with lead, those lands, once remediated, as required under proposed condition 14), will be suitable for its proposed use as a residential subdivision;

7. the balance of the Subject Site is suitable in its current state for use as a residential subdivision;

8. as a consequence of the matters addressed above at (1) to (7), the provisions of cl 7 of SEPP55 are satisfied.

State Environmental Planning Policy (Infrastructure) 2007

15. State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to the Proposed Development because:

1. the Subject Site adjoins Ewingsdale Road, which is a classified road with a traffic volume greater than 20,000 vehicles per day; and

2. because the Proposed Development will generate traffic onto a classified road.

16. The following are the relevant provisions of SEPP Infrastructure that require consideration in relation to the Proposed Development, together with the basis upon which the Parties agree that the requirements of those provisions have been satisfied.

1. clause 101 of the Infrastructure SEPP:

1. which requires that a consent authority must not grant consent to development on land that has frontage to a classified road unless it is satisfied that:

“a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of –

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road”.

2. and in relation to which, I am satisfied that the requirements of cl 101 are satisfied because the Proposed Development (as amended) includes:

1. a limit to vehicular access to the existing Ewingsdale Road/ Bayshore Drive roundabout through the staged construction and dedication of a new collector road, Road 1 and partial closure of Melaleuca Drive;

2. that a section of Melaleuca Drive situated between Road 1 and Ewingsdale Road is to be closed;

3. that the section of Melaleuca Drive to the south of proposed Road 1 is not proposed to be closed, and will continue to be utilised as a public road by both proposed new allotments and existing allotments to the south;

4. a series of lower order public roads that, directly or indirectly, will access proposed Road 1 and will service the balance of proposed new allotments;

5. that the properties at 300 and 310 Ewingsdale Road will continue to utilise their existing constructed access points to Ewingsdale Road, until such time as further development occurs on the allotments or those access points are removed through the duplication of Ewingsdale Road or through safety and efficiency improvement works to Ewingsdale Road;

6. formalised future vehicular access for the properties at 300 and 310 Ewingsdale Road, as part of the Proposed Development, through proposed Road 2, which will be dedicated to Council and which will connect with proposed Road 1;

7. an access driveway to service the single dwelling on 300 Ewingsdale Road which has been designed into the proposed subdivision;

8. that the property at 310 Ewingsdale Road, which is the larger of the two lots, will have a direct road frontage;

9. the construction of an acoustically treated fencing for proposed Lots 1-11 and front boundary fence designs for proposed Lots 136-145 which will ameliorate any potential traffic noise impact on those lots;

10. that the acoustically treated fencing is setback 30m from Ewingsdale Road and the Proposed Development will provide a 30m deep landscaping screen to be planted along its Ewingsdale Road frontage.

2. clauses 102(2) and 102(3) of the Infrastructure SEPP, concerning the impact of road noise or vibration on non-road development:

1. which require, respectively, that:

1. for residential accommodation, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette; and

2. where the development is for the purposes of residential accommodation, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

1. in any bedroom in the residential accommodation – 35dB(A) at any time between 10pm and 7am; and

2. anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway) – 40dB(A) at any time.

2. in relation to which:

1. the development does not propose the construction of any residential accommodation, but rather the subdivision of land for the purposes of residential accommodation;

2. a Noise Impact Assessment has been prepared and submitted to the Respondent which sets out mitigation measures to ameliorate the potential impacts of traffic noise to the future residential accommodation on the Site. Those measures include the acoustically treated fencing for Lots 1-11 and front boundary fence designs for proposed Lots 136-145, together with the 30m setback from Ewingsdale Road and provision of a 30m deep landscape buffer along Ewingsdale Road;

3. the Noise Impact Assessment report concludes that, as a consequence of the mitigative effects of the proposed 30m setback and landscape buffer from Ewingsdale Road to the nearest proposed lots, the road traffic noise reductions required under cl 102(3) are likely to be achieved with standard building shell treatments (i.e. Construction Category 1 in the “Development near rail corridors and busy roads – interim guideline”), and outcome will be further addressed as part of a subsequent development applications for individual dwellings on the subdivided residential lots.

3. clause 104 of the Infrastructure SEPP, which applies because the development is for more than 50 lots with access to a road that connects to a classified road, being Ewingsdale Road, and in relation to which:

1. cl 104(3) provides that before determining a development application to which cl 104 applies, the consent authority must give written notice of the application to the NSW Roads and Maritime Services (RMS), and take into consideration:

1. any submission the RMS provides within 21 days of the notice having been given,

2. the accessibility of the site, including:

• the efficiency of movement of people and freight to and from the site and extent of multi-purpose trips, and

• the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight rail, and

3. any potential traffic safety, road congestion or parking implications of the development.

2. the RMS was notified of the development by the Respondent and the RMS has provided a letter setting out matters to be considered in determining the application;

3. the Parties have confirmed that the matters identified within the RMS’ letter have been considered and that the development addresses relevant traffic matters;

4. the Parties have also confirmed that the development does not significantly impact on the safety or efficiency of Ewingsdale Road, and provides for an internal road network facilitating public transport opportunities as well as active transport.

State Environmental Planning Policy No 14 – Coastal Wetlands

17. State Environmental Planning Policy No 14 – Coastal Wetlands (SEPP 14) continues to apply to the Proposed Development because:

1. SEPP 14 was in force at the time the development application was lodged; and

2. the savings and transitional provisions within cl 21(1) of State Environmental Planning (Coastal Management) 2018 (Coastal Management SEPP) provide that “the former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies”;

3. the Applicant’s development application was lodged before the commencement of the 2018 SEPP and has not yet been finally determined.

18. While the Subject Site is mapped as containing coastal wetlands subject to the provisions of SEPP 14, the footprint of works under the Proposed Development is located external to any mapped areas of coastal wetlands that would be subject to the provisions of SEPP 14 and it is also outside of the 100m buffer required around mapped coastal wetlands.

19. The Parties have advise that the provisions of SEPP 14 are met, and do not preclude the grant of development consent.

State Environmental Planning Policy No 26 – Littoral Rainforest

20. The Subject Site does not contain any littoral rainforest as mapped under the now repealed State Environmental Planning Policy No 26 – Littoral Rainforest.

State Environmental Planning Policy No 44 – Koala Habitat Protection

21. State Environmental Planning Policy No 44 – Koala Habitat Protection (SEPP 44) continues to apply to the Proposed Development, because:

1. it was in force at the time of lodgement of the Applicant’s development application; and

2. clause 15 of State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019) provides that “a development application made, but not finally determined, before the commencement of this Policy in relation to land to which this Policy applies must be determined as if this Policy had not commenced”;

3. the Applicant’s development application was not finally determined before the commencement of the Koala SEPP 2019 and so that instrument does not apply to the Proposed Development.

22. The following provisions of SEPP 44 are of relevance in relation to the Proposed Development:

1. clause 7 of SEPP 44 requires that a Council must satisfy itself as to whether or not the land is potential koala habitat before granting development consent. If the land is not potential koala habitat, the Council is not prevented from granting consent because of SEPP 44. If the land is potential koala habitat, the Council must comply with the provisions of cl 8 of SEPP 44.

2. clause 8 of SEPP 44 requires that a Council must satisfy itself as to whether or not the land is core koala habitat. A Council may satisfy itself as to whether or not land is core koala habitat only on information obtained by it, or by the Applicant, from a person with appropriate qualifications and experience in biological science and fauna survey and management: cl 8(2). If the Council is satisfied that the land is not core koala habitat, it is not prevented because of SEPP 44 from granting development consent to the development application. If the Council is satisfied that the land is core koala habitat, the Council must comply with cl 9 of SEPP 44.

3. clause 9 of SEPP 44 requires there to be a koala plan of management, made in accordance with Part 3 of SEPP 44, for the land that is core koala habitat and that the determination of the development application must not be inconsistent with the plan of management.

4. clause 4 of SEPP 44 contains the following key definitions:

1. “core koala habitat” means “an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population”.

2. “potential koala habitat” means “areas of native vegetation where the trees of the types listed in Schedule 2 constitute at least 15% of the total number of trees in the upper or lower strata of the tree component.”

23. The Parties have confirmedthat the Subject Site does not contain core koala habitat as defined in SEPP 44, for the following reasons:

1. the Subject Site contains “potential koala habitat” being the vegetation identified as Community 4 Tall to Very Tall Woodland to Open Forest (Swamp Mahogany) on the “Overall Masterplan – Existing Vegetation” plan, drawing number J6539_201, Rev 01, dated 18 June 2020 (illustrated by the dark purple shading on that plan)). A separate plan, prepared by Planit Consulting, which illustrates the location of this vegetation is provided Annexure B to this judgment;

2. the Applicant has relied upon historical survey information covering the West Byron Urban Release Area for a 26-year period from 1994, as well as recent survey work carried out on the Subject Site in 2016 and 2020 by Planit Consulting to determine whether or not the Subject Site contains core koala habitat;

3. the survey work carried out by Planit Consulting was conducted by persons with appropriate qualifications and experience in biological science and fauna survey and management. The curriculum vitae for each of Mr Boyd Sargeant, Mr Graham Dart and Mr Tomy Rados of Planit Consulting, who hold relevant tertiary qualifications and accreditations in biological science and fauna survey and management and have appropriate experience in that area, have been provided by the Applicant;

4. the Applicant has attested and the Respondent accepts that Mr Sargeant is appropriately qualified and experienced with surveying for koalas as outlined in his curriculum vitae and he holds relevant licences and permits in NSW for surveying of wildlife;

5. the methodology employed to identify and record fauna species occurring or potentially occurring on the Subject Site included a desk top review of previous reports, assessments and data sets over and adjacent to the Site. The methodology also included various on-site surveying techniques outlined in the Terrestrial Flora & Fauna Assessment Harvest Estate, West Byron dated August 2020.;

6. the suite of koala surveying techniques applied by the Applicant were consistent with accepted surveying methods for koalas and have been employed by those undertaking the surveys for koalas in relation to other sites/investigations, as identified in the curriculum vitae of Mr Sargeant;

7. neither the historical surveys (over a twenty-six (26) year period), nor the recent surveys carried out by Planit Consulting in 2016 and 2020 have recorded the presence of breeding females on the Subject Site, while acknowledging that the surveying effort has not been continuous over this period;

8. there were no sightings of koalas during the Planit survey work in 2016 and 2020. As outlined in the Applicant’s report entitled ‘Terrestrial Flora & Fauna Assessment Harvest Estate, West Byron’ dated August 2020, koala scats were recorded by the Planit survey team at one location on the Subject Site within Community 4 Tall to Very tall Woodland to Open Forest (Swamp Mahogany) vegetation (see Community 4 Tall to Very tall Woodland to Open Forest (Swamp Mahogany) identified in dark purple on the “Overall Masterplan – Existing Vegetation” plan, drawing number J6539_201, Rev 01, dated 18 June 2020). Further, the Byron Coast Koala Habitat Study (Biolink 2012) concluded that the bulk of the Byron Coast Study Area’s koala population occurs at a density estimate of 0.20 koalas/ ha The core habitat requirements for a viable koala population are typically 1 koala/5 ha (based on the 0.2 koalas / ha finding extrapolated to whole individuals);

9. there is only approximately 753m² of potential koala habitat (being the Community 4 Tall to Very tall Woodland to Open Forest (Swamp Mahogany), identified in dark purple on the “Overall Masterplan – Existing Vegetation” plan, drawing number J6539_201, Rev 01, dated 18 June 2020) on the Subject Site, and illustrated within Annexure B to this judgment;

10. the Site does not contain a resident population of koalas because:

1. there is no evidence of breeding females on the Subject Site;

2. there have not been any recent visual sightings of koalas on the Subject Site, with the last being in 2010;

3. there are no historical records showing the presence of a population on the Subject Site; and

4. there is limited potential koala habitat on the Subject Site;

11. the potential habitat on the Subject Site is proposed to be retained intact within the Proposed Development;

12. on the basis of the information provided by the Applicant (historical records and surveys and recent survey work carried out by persons, from Planit Consulting, with appropriate qualifications and experience), the Respondent is satisfied that the Subject Site does not contain core koala habitat as defined in SEPP 44.

24. The Parties have provided a letter from Dr Jacqui Couglan, Principal Ecologist at Australian Wetland Consulting Pty Ltd, stating that she concurred with the submissions of the Parties as provided above (at [23]), and agreed that the Subject Site does not contain core koala habitat as defined in SEPP 44.

25. As the Subject Site is assessed to contain no core koala habitat:

1. a koala plan of management prepared pursuant to the provisions of cl 9 of SEPP 44 is not required to be prepared; and

2. nothing in SEPP 44 precludes the grant of development consent for the Proposed Development.

Threatened Species Conservation Act 1995

26. The Threatened Species Conservation Act 1995 (the TSC Act) continues to apply to the Proposed Development because the Applicant’s development application was lodged on 10 May 2017, which is a date before the commencement of the Biodiversity Conservation Act 2016 (the BC Act) on 25 August 2017, and had not been determined by that date.

27. Pursuant to cl 28(1) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017, the “former planning provisions” (being the provisions of the EP&A Act that would have been in force if not amended by the BC Act) continue to apply to a development application made but not finally determined immediately before the commencement of the BC Act. The former provisions of the EP&A Act required the assessment of the Proposed Development under the TSC Act (rather than the BC Act).

28. The Parties have advised, and I am satisfied, that:

1. no endangered populations, as identified in Schedule 1, Part 2 of the TSC Act, have been recorded as occurring on the Subject Site;

2. no threatened flora species, as identified in Schedule 1, Part 1 of the TSC Act, have been recorded as occurring on the Subject Site;

3. a 7-part test, undertaken in accordance with Section 5A of the EP&A Act (before it was amended on the commencement of the BC Act) was carried out for each of the endangered ecological communities (EECs) which may potentially occur on the Subject Site, including:

1. Freshwater Wetlands on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner;

2. Swamp Oak Floodplain Forest of the NSW North Coast, Sydney Basin and South East Corner Bioregions; and

3. Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions.

4. 7-part tests were undertaken in accordance with Section 5A of the EP&A Act (before it was amended on the commencement of the BC Act) for these EECs, and these concluded that the Proposed Development is unlikely to impact significantly any of the three EECs referred to above (at [(3)]) such that the local occurrence of any of the EECs would be placed at risk of extinction;

5. a 7-part test, undertaken in accordance with Section 5A of the EP&A Act (before it was amended on the commencement of the BC Act), was also carried out for each of the threatened fauna species recorded on the Subject Site, as well as for the other scheduled fauna species which have the potential to occur on Site. This included the following eight (8) fauna species identified as vulnerable under the TSC Act which had been recorded as occurring on the Subject Site during fauna surveys carried out on behalf of the Applicant:

1. the Wallum Froglet (Crinia tinnula);

2. Wallum Sedge-frog (Litoria olongburensis);

3. Koala (Phascolarctos cinereus), by way of scat detection, but with no sightings;

4. Grey-headed Flying-fox (Pteropus poliocephalus);

5. Little Bent-wing Bat (Miniopterus australis);

6. Large Bent-wing Bat (Miniopterus orianae oceanensis);

7. Greater Broad-nosed Bat (Scoteanax rueppellii); and

8. Southern Myotis (Myotis macropus).

6. the 7-part tests referred to above [at (5)] assessed that the Proposed Development would not have a significant impact on any of those fauna species such that the local occurrence of each species would be placed at risk of extinction;

7. as a consequence of conclusions of the 7-part tests referred to above, a Species Impact Statement is not required in respect of the Proposed Development;

8. for completeness, a BioBanking Statement was approved for Part Lot 6 DP 122674 in accordance with Part 7A of the TSC Act for the removal of 0.65ha of (PCT 1064), 0.65ha of habitat for Wallum Froglet (Crinia tinnula) and 0.57ha of habitat for Wallum Sedge-frog (Litoria olongburensis). However, the Applicant’s development application has been amended such that this habitat area is now proposed to be maintained. Consequently, the BioBanking Statement is not required.

Integrated development – Bushfire

29. The Subject Site is identified as Bushfire Prone land (category 1 and buffer) pursuant to the Respondent’s bush fire prone land map.

30. Pursuant to the provisions of s 4.46 of the EP&A Act, the Applicant’s development application is, therefore, integrated development, as authorisation under section 100B of the Rural Fires Act 1997 is required in respect of the bush fire safety of a subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes.

31. A bush fire safety authority is required from the NSW Rural Fire Service (RFS), and the RFS has issued General Terms of Approval in relation to the development application (as amended) on 6 November 2020. The Parties’ proposed conditions of consent refer to those general terms of approval which are included at Schedule 1 to the conditions.

Byron Development Control Plan 2014

32. Chapter E8 West Byron Urban Release Area of the Byron Development Control Plan 2014 (BDCP) applies to the Site and provides a framework to guide the future development of West Byron and specifies subdivision, built form, environmental protection and other guiding controls to achieve the vision for West Byron Bay.

33. The Parties have advised, and I am satisfied, that the Applicant’s development application, as amended, meets the intent of the West Byron DCP and particularly its objectives and performance criteria, through either specifically meeting prescriptive measures or as a result of alternative solutions and site-specific responses.

34. The Respondent has confirmed, and I am satisfied, that the relevant provisions of the Chapter E8 of BDCP have been considered and that the Proposed Development has satisfied those provisions, noting that, in circumstances where there are non-compliances with the performance criteria or prescriptive measures contained in the DCP, the objectives of those provisions (or the relevant Part of BDCP) have been met such that is appropriate to apply flexibility to the achievement of those provisions pursuant to s 4.15(3A) of the EP&A Act.

Notification of DA and public interest considerations

35. The Parties have confirmed, and I am satisfied, that the Applicant’s development application, as amended, has been placed on public exhibition and was notified in accordance with the requirements of the EP&A Act, the Environmental Planning and Assessment Regulation 2000 and Chapter E8 of the BDCP, during September 2020. The Respondent advised that it had received some 419 submissions in response to that exhibition.

36. The Respondent has confirmed that it is satisfied, and I accept, that the issues raised by the submissions have been considered and appropriately addressed.

Conclusion

37. Having considered the advice of the Parties, provided above (at [12] to [36], I agree that the jurisdictional prerequisites, in relation to which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act, have been so satisfied.

38. I am further 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.

39. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

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

Orders

41. The Court orders that:

1. The Applicant is given leave to amend its application to rely on the amended plans and documents referred to below:

Plan No.	Description	Prepared by	Dated:
0050 Rev C	General Arrangement - Overall	Planit Consulting	27/8/20
0051 Rev C	General Arrangement – Sheet 1 of 2	Planit Consulting	27/8/20
0052 Rev C	General Arrangement - Sheet 2 of 2	Planit Consulting	27/8/20
0200 Rev B	Finished Surface Cut and Fill Plan – Sheet 1 of 2	Planit Consulting	27/8/20
0201 Rev B	Finished Surface Cut and Fill Plan – Sheet 2 of 2	Planit Consulting	27/8/20
0210 Rev B	Earthworks Plan Sheet 1 of 6	Planit Consulting	27/8/20
0211 Rev B	Earthworks Plan Sheet 2 of 6	Planit Consulting	27/8/20
0212 Rev B	Earthworks Plan Sheet 3 of 6	Planit Consulting	27/8/20
0213 Rev B	Earthworks Plan Sheet 4 of 6	Planit Consulting	27/8/20
0214 Rev A	Earthworks Plan Sheet 5 of 6	Planit Consulting	26/6/20
0215 Rev A	Earthworks Plan Sheet 6 of 6	Planit Consulting	26/6/20
0220 Rev B	Site Sections	Planit Consulting	27/8/20
0230 Rev A	Retaining Wall Sections	Planit Consulting	26/6/20
0300 Rev C	Road and Drainage Plan – Sheet 1 of 6	Planit Consulting	27/8/20
0301 Rev C	Road and Drainage Plan – Sheet 2 of 6	Planit Consulting	27/8/20
0302 Rev C	Road and Drainage Plan – Sheet 3 of 6	Planit Consulting	27/8/20
0303 Rev C	Road and Drainage Plan – Sheet 4 of 6	Planit Consulting	27/8/20
0304 Rev B	Road and Drainage Plan – Sheet 5 of 6	Planit Consulting	24/7/20
0305 Rev B	Road and Drainage Plan – Sheet 6 of 6	Planit Consulting	24/7/20
0310 Rev C	Typical Road Sections – Sheet 1 of 7	Planit Consulting	27/8/20
0311 Rev C	Typical Road Sections – Sheet 2 of 7	Planit Consulting	27/8/20
0312 Rev C	Typical Road Sections – Sheet 3 of 7	Planit Consulting	27/8/20
0313 Rev C	Typical Road Sections – Sheet 4 of 7	Planit Consulting	27/8/20
0314 Rev C	Typical Road Sections – Sheet 5 of 7	Planit Consulting	27/8/20
0315 Rev B	Typical Road Sections – Sheet 6 of 7	Planit Consulting	27/8/20
0316 Rev A	Typical Road Sections – Sheet 7 of 7	Planit Consulting	27/8/20
0320 Rev B	Road 01 Longitudinal Section – Sheet 1 of 2	Planit Consulting	24/7/20
0321 Rev B	Road 01 Longitudinal Section – Sheet 2 of 2	Planit Consulting	24/7/20
0322 Rev A	Road 02 Longitudinal Section	Planit Consulting	26/6/20
0323 Rev A	Road 03 & Melaleuca Drive Longitudinal Sections	Planit Consulting	26/6/20
0324 Rev A	Road 04 Longitudinal Section	Planit Consulting	26/6/20
0325 Rev A	Road 05 Longitudinal Section	Planit Consulting	26/6/20
0326 Rev B	Road 06 Longitudinal Section – Sheet 1 of 2	Planit Consulting	24/7/20
0327 Rev A	Road 06 Longitudinal Section – Sheet 2 of 2	Planit Consulting	26/6/20
0328 Rev A	Road 07 & 08 Longitudinal Sections	Planit Consulting	26/6/20
0329 Rev A	Road 09 Longitudinal Section	Planit Consulting	26/6/20
0340 Rev A	Kerb Return 01 Longitudinal Section	Planit Consulting	26/6/20
0341 Rev A	Kerb Return 02 Longitudinal Section	Planit Consulting	26/6/20
0342 Rev A	Kerb Return 03 Longitudinal Section	Planit Consulting	26/6/20
0410 Rev C	Proposed and Impacted Catchment Plan	Planit Consulting	27/8/20
0420 Rev A	Typical Swale Sections	Planit Consulting	26/6/20
0430 Rev A	Swale 01 Longitudinal Section	Planit Consulting	26/6/20
0440 Rev A	Bio-retention & Bio-swale Details	Planit Consulting	26/6/20
0450 Rev A	Plan of Swales – Sheet 1 of 2	Planit Consulting	13/8/20
0451 Rev A	Plan of Swales – Sheet 2 of 2	Planit Consulting	13/8/20
0500 Rev A	Sewer and Water Plan Set – Sheet 1 of 4	Planit Consulting	27/8/20
0501 Rev A	Sewer and Water Plan Set – Sheet 2 of 4	Planit Consulting	27/8/20
0502 Rev A	Sewer and Water Plan Set – Sheet 3 of 4	Planit Consulting	27/8/20
0503 Rev A	Sewer and Water Plan Set – Sheet 4 of 4	Planit Consulting	27/8/20
0510 Rev A	Sewer Pump Detail	Planit Consulting	26/6/20
0520 Rev A	Low Pressure Catchment Plan	Planit Consulting	26/6/20
0530 Rev B	Regional Sewer Pump Station Network Connections	Planit Consulting	27/8/20
0531 Rev A	Regional Sewer Pump Station Site Layout	Planit Consulting	26/6/20
0532 Rev A	Regional Sewer Pump Station General Details	Planit Consulting	26/6/20
0533 Rev A	Regional Sewer Pump Station Fittings Details	Planit Consulting	26/6/20
0534 Rev A	Regional Sewer Pump Station Wet Weather Storage Details	Planit Consulting	26/6/20
0600 Rev B	Staging Plan	Planit Consulting	27/8/20
0610 Rev C	Stage 1 Phase A Plan	Planit Consulting	27/8/20
0611 Rev B	Stage 1 Phase B Plan	Planit Consulting	27/8/20
0620 Rev B	Stage 2 Plan	Planit Consulting	27/8/20
0630 Rev B	Stage 3 Plan	Planit Consulting	27/8/20
0640 Rev C	Stage 4 Plan	Planit Consulting	27/8/20
0650 Rev C	Stage 5 Plan	Planit Consulting	27/8/20
0660 Rev B	Stage 6 Plan	Planit Consulting	27/8/20
J5644_02 Rev 02	Acid Frogs Habitat Plan – Habitat Creation Areas for Acid Frogs	Planit Consulting	16/6/20
J5644_03 Rev 02	Acid Frogs Habitat Plan – Sections & Details	Planit Consulting	16/6/20
J5644_04 Rev 02	Acid Frogs Habitat Plan – Detailed Pond Plan & Details	Planit Consulting	16/6/20
J5644_0501 Rev 02	Rehabilitation Plan – Zone 1	Planit Consulting	16/6/20
J5644_0502 Rev 02	Rehabilitation Plan – Zone 2	Planit Consulting	16/6/20
J5644_0503 Rev 02	Rehabilitation Plan – Zone 3	Planit Consulting	16/6/20
J5644_0504 Rev 02	Rehabilitation Plan – Zone 4	Planit Consulting	16/6/20
J5644_0505 Rev 03	Rehabilitation Plan – Zone 5	Planit Consulting	27/7/20
Landscape Sections, Section 01, Section 02	20/8/20
Landscape Sections, Section 03	16/6/20
J6539_001 Rev 04	Overall Masterplan	Planit Consulting	27/5/20
J6539_001 Rev 02	Vegetation & APZ Plan	Planit Consulting	28/10/20
J6539_002 Rev 04	Subdivision Plan	Planit Consulting	27/5/20
J6539_101 Rev 03	Overall Open Space Plan	Planit Consulting	16/6/20
J6539_102 Rev 03	Open Space Plan As amended by Council on 031120 to identify “all roads are to be dedicated to Council free of cost”	Planit Consulting	3/11/20
J6539_210 Rev 02	Vegetation Clearing Plan	Planit Consulting	22/5/20
J6539_001 Rev 01	E2 Zone Buffer	Planit Consulting	21/5/20
J6682 Revision A	Rehabilitation Zones Plan – Pages 1 and 2	18/6/20
SK090 Rev A	Frog Habitat Sections (sheet 1 of 2)	Planit Consulting	20/8/20
SK091 Rev A	Frog Habitat Sections (sheet 2 of 2)	Planit Consulting	20/8/20
Management Plans
HMC 2016.119	Acid Sulfate Soils Management Plan Residential Subdivision	HMC environmental consulting	November 2016
Harvest Estate Landscape Masterplan	Planit Consulting	28/8/20
Revision D	Harvest Estate Groundwater Management Plan	Australian Wetlands Consulting	26/8/2020
Revision C	Harvest Estate Belongil Creek Plan of Management	Australian Wetlands Consulting	26/8/2020
Revision D	Harvest Estate Acid Frog Management Plan	Australian Wetlands Consulting	26/8/2020
Version 1.3	Harvest Estate Koala Plan of Management	Planit Consulting	26/8/2020
Version 1.3	Harvest Estate Threatened Species Management Plan	Planit Consulting	26/8/2020
Version D	Harvest Estate Vegetation Management Plan	Planit Consulting	27/8/2020
Version E	Harvest Estate Biodiversity Conservation Management Plan	Planit Consulting	27/8/2020
Revision E	Harvest Estate Stormwater Management Plan (SWMP)	Planit Consulting	27/8/2020
Documents / Reports
Issue 1.2	Statement of Environmental Effects	Planit Consulting Pty Ltd	26/08/2020
West Byron Urban Release Area (WBURA) Traffic Impact Assessment	Bitzios Consulting	27 August 2020
Cover Letter - s34 Traffic Experts Actions Response - Villa World Pty Ltd V Byron Shire Council	Bitzios Consulting	27 August 2020
Revision C	Engineering Assessment	Planit Consulting Pty Ltd	31 July 2020
Sewer Servicing Assessment	Planit Consulting Pty Ltd	17 July 2020
Harvest Estate Flood Impact Assessment	BMT Commercial Australia Pty Ltd	10 June 2020
Traffic Impact Assessment	Bitzios Consulting	18/06/2020
Environmental Noise Impact Assessment	CRG Acoustics Pty Ltd	25/08/2020
Revision A	Bushfire Safety Authority Application	Planit Consulting Pty Ltd	17/06/2020
Revision E	Terrestrial Flora and Fauna Assessment	Planit Consulting Pty Ltd	06/08/2020
Visual Impact Assessment - Ewingsdale Rd Frontage & Neighbouring Properties	Planit Consulting Pty Ltd	26/06/2020
Revision D	Design Guidelines Booklet	Planit Consulting Pty Ltd	28/08/2020

2. The Applicant is to pay the Respondent’s costs “thrown away” by the amendment of its application pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 in the amount $40,000, to be payable within 28 days of these orders being made.

3. The appeal is upheld.

4. Development Application no. 10.2017.201.1 for the staged subdivision of 9 lots into 149 residential lots (comprised of 145 smaller residential lots and 4 large lifestyle lots) and the creation of 7 green infrastructure lots, together with associated works including vegetation removal, earthworks, landscaping, creation of public reserves, roads, environmental management and protection and stormwater works at 342 Ewingsdale Road, 22A and 22B Melaleuca Drive, Byron Bay is approved, subject to the conditions of consent at “Annexure A”.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (456016, pdf)

Annexure B (1236877, pdf)

**********

Decision last updated: 08 December 2020