Land and Environment Court New South Wales Medium Neutral Citation: Hejtmanek v Byron Shire Council [2021] NSWLEC 1058 Hearing dates: Conciliation conference held on 28 – 29 January 2021 Date of orders: 08 February 2021 Decision date: 08 February 2021 Jurisdiction: Class 1 Before: Bish C Decision: See orders at [21] Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling plus secondary dwelling – flooding risk mitigated – solar access amenity to adjoining property Legislation Cited: Byron Local Environmental Plan 2014 COVID-19 Legislation Amendment (Emergency Measures) Act 2020 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Byron Shire Development Control Plan 2014 Land and Environment Court, COVID-19 Pandemic Arrangements Policy (July 2020) North Byron Shire Flood Study (2016) Category: Principal judgment Parties: Sandra Hejtmanek (Applicant) Byron Shire Council (Respondent) Representation: Counsel: M Young (Solicitor) (Applicant) P Vergotis (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) McCabe Curwood Pty Ltd (Respondent) File Number(s): 2020/152601 Publication restriction: No Judgment 1. COMMISIONER: This is an appeal against refusal of Development Application 10.2019.355.1 (the DA) by Byron Shire Council (hereafter the Council) which seeks alterations and additions to an existing dwelling and construction of a new secondary dwelling on Lot 302 DP 755692, also known as 2 Riverside Crescent, Brunswick Heads (hereafter the site). 2. The DA was submitted to Council on 18 July 2019, and after notification, made consistent with relevant planning controls, one submission in objection was received. 3. On 9 March 2020, the Council refused the DA on the grounds of incompatibility with the high flood risk, building height plane, and unsuitability of the site for the proposed development, creating an undesirable precedence. 4. The applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 5. In response, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view, and then proceeded in person and remotely by MS Teams on 28 and 29 January 2021, respectively. This approach to conciliation (and hearings) is consistent with the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 and the most recent Court's COVID-19 Pandemic Arrangements Policy. 6. Based on the amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 10.2019.355.1 with conditions. 7. Pursuant to s 34(3) of the Court Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to the requirements in s 4.15(1), to grant consent to DA 10.2019.355.1, with conditions, as described in Annexure A. 8. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as, consistency with the: State Environmental Planning Policy (Coastal Management) 2018 (SEPP Coast); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); Byron Local Environmental Plan 2014 (BLEP); and the Byron Shire Development Control Plan 2014 (BSDCP). The North Byron Shire Flood Study (2016) is also of consideration in this appeal. 9. The parties agree that the proposed development complies with the provisions of the SEPP 55. The respondent has assessed the site as being used historically for residential purposes and that the site is thereby suitable for the proposed development, satisfying the requirements of SEPP 55. 10. The parties also agree that the proposed development satisfies the requirements of the SEPP Coast. Specifically, as the site is located within a designated 'coastal environment area' and 'coastal use area', the provisions of cll 13 and 14 are relevant for consideration. The parties agree that the proposed development is designed and sited to manage/avoid any potential adverse impact, as required for consideration in cll 13 and 14. Therefore, the requirements of the SEPP Coast are achieved by the proposed development. 11. The proposed development is required to comply with the provisions of the SEPP BASIX. The parties confirmed to the Court that a BASIX Certificate relevant to the proposed development is identified in the conditions of consent, and provided in compliance with the SEPP BASIX provisions. 12. The proposed development on the site is located within an R2 Low Density Residential zone, as identified in the BLEP. The proposed development is permissible and satisfies the objectives of this zone, as described in cl 2.3 of the BLEP. The parties agree that the relevant provisions of the BLEP are addressed to their satisfaction. The relevant contentions are resolved by the DA's amended plans and supporting documents, and conditions of consent. 13. Specifically, the parties agree that the site is located on flood prone land, pursuant to cl 6.3 of the BLEP, and that the existing and proposed habitable floor levels of the dwellings are designed above the flood planning level. The parties explain that there is no additional risk to residents from the proposed development, including the secondary dwelling, based on the proposed design of dwellings, which are connected by a pedestrian bridge, and the reliance on an emergency evacuation plan, as described in the conditions of consent. The requirements of cl 6.3 are achieved and risk to human life is mitigated to the satisfaction of the parties. 14. The proposed development is located on land mapped as being acid sulphate soils, and therefore the requirements of cl 6.1 of the BLEP are relevant for consideration. The parties are satisfied by the Acid Sulphate Soils Management Plan, described in the conditions of consent, and which achieves the requirements of cl 6.1. 15. The site has access to required essential services for the proposed development, thereby satisfying the requirements of cl 6.6 of the BLEP. 16. The parties agree that the DA was publicly notified in accordance with the BSDCP. During the notification period for this DA under appeal, one submission in objection was received by Council. The parties agree that the issues raised in this objection have been considered and are addressed to their satisfaction by the design of the proposed development and conditions of consent. 17. The parties advise the Court that the amended plans that support the DA have been considered in the context of the site and surrounding area, particularly the proximity to the coastal/river area and potential for flooding. The contentions raised by Council and all jurisdictional requirements are resolved to the satisfaction of the parties. 18. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, which they are satisfied resolves the contentions and objector issues, as raised. 19. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 10.2019.355.1 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 20. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 21. The Court orders that: 1. The Applicant is granted leave to amend Development Application No.10.2019.355.1 to rely on the following amended plans and documents: Plan No. Plan Title Prepared by Dated 100 Rev H Site Plan Zac Tooth Architect 28/01/2021 200 Rev H Floor Plan - 0 Zac Tooth Architect 28/01/2021 201 Rev H Floor Plan – 1 Zac Tooth Architect 28/01/2021 202 Rev H Floor Plan – Roof Zac Tooth Architect 28/01/2021 203 Rev H Floor Plan – Foundation Zac Tooth Architect 28/01/2021 300 Rev H Elevation East (N/E) Zac Tooth Architect 28/01/2021 301 Rev H Elevation West (S/W) Zac Tooth Architect 28/01/2021 302 Rev H Elevation South (S/E) Zac Tooth Architect 28/01/2021 303 Rev H Elevation North (N/W) Zac Tooth Architect 28/01/2021 310 Rev H Secondary – South (S/E) Zac Tooth Architect 28/01/2021 311 Rev H Secondary – North (N/W) Zac Tooth Architect 28/01/2021 1. The appeal is upheld. 2. Development Application No.10.2019.355.1 for alterations and additions to an existing dwelling and the construction of the secondary dwelling on the land at Lot 302 in DP 755692, known as 2 Riverside Crescent, Brunswick Heads is approved subject to the determination at Annexure "A". ………………………… Sarah Bish Commissioner of the Court Annexure A (261119, pdf) Plans (3969055, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2021