Land and Environment Court New South Wales Medium Neutral Citation: Pace Development Group Pty Ltd v Byron Shire Council [2021] NSWLEC 1340 Hearing dates: Conciliation conference on 13-14 May 2021 Date of orders: 25 June 2021 Decision date: 25 June 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The applicant's written request dated 7 May 2021 pursuant to cl 4.6 of the Byron Local Environmental Plan 2014 seeking variation of the development standard relating to the height of buildings contained in clause 4.3 is upheld. (2) The applicant's written request dated 13 May 2021 pursuant to cl 4.6 of the Byron Local Environmental Plan 2014 seeking variation of the development standard relating to floor space ratio contained in clause 4.4 is upheld. (3) The appeal is upheld. (4) The development described as: (a) demolition/removal of existing building; and (b) construction of a Mixed Use Development comprising hotel accommodation with ancillary swimming pool, rooftop open space, ground floor retail premises and basement health spa, being a 3 storey building above 2 levels of basement, for the land legally described as Lot 9 Section 26 DP 758307 and located at 7 Marvell Street, Byron Bay is approved subject to the determination at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Byron Local Environmental Plan 2014, cll 4.3, 4.4, 4.5, 4.6 Environmental Planning and Assessment Act 1979, ss 1.3, 4.12, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 49 Land and Environment Court Act 1979, ss 34, 39 Cases Cited: Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1297 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Byron Development Control Plan 2014 Category: Principal judgment Parties: Pace Development Group Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: J Smith (Applicant) P Vergotis (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) McCabe Curwood (Respondent) File Number(s): 2020/65271 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application 10.2019.576.1 (the development) for the construction of a three-storey mixed use development comprising a hotel, retail tenancies, a swimming pool and basement parking on Lot 9 in DP 758207 known as 7 Marvell Street, Byron Bay (the site). 2. On 14 May 2021 the Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 3. Under s 34(3) of the LEC 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. In this case, the parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application on a conditional basis. Before this function can be exercised, there are jurisdictional prerequisites that must be satisfied. 4. With respect to my jurisdiction, I am satisfied that the site is located in the zone B2 Local Centre under the Byron Local Environmental Plan 2014 (BLEP 2014) and the Land Use Table expressly provides that tourist and visitor accommodation is permitted with consent. Furthermore, I accept that the owner of the land has given consent to the development application in accordance with s 4.12 of the EPA Act and cl 49 of the Environmental Planning and Assessment Regulation 2000. 5. The development breaches the maximum height of buildings standard in cl 4.3 of the BLEP 2014 and the maximum FSR standard in cl 4.4. 6. As required by subcl 4.6(4)(a)(i) of the BLEP 2014, I am satisfied that the applicant's cl 4.6 written requests seeking approval to vary the height of buildings standard in cl 4.3 and the FSR standard in cl 4.4 – adequately address the matters required to be demonstrated by subcl 4.6(3); and that the proposed development will be in the public interest because it is consistent with the objectives of the two relevant standards and the objectives for development within the zone. My reasoning follows. Variation of the maximum height of buildings – cl 4.3 1. Clause 4.3 provides that the maximum height of buildings for this site is 11.5m above existing ground level. 2. The written request records that existing ground level ranges for the site from RL2.15m to RL2.48m AHD and the maximum height of the proposed development at the roof top stairs, lift overrun and toilet, is RL15.44m AHD. Based on the lowest existing ground level in the area of the lift overrun and roof top stair and toilet structures, the maximum height of the development will be is 13.15m. (Although, I understand that a Planning Proposal (Draft LEP) is currently being processed by Council that proposes setting a maximum height based on 11.5m above a level derived from the flood planning level of RL3.5m AHD rather than existing ground level. This will equate to a maximum building height for the site of RL15.0m AHD or between 12.85m to 12.52m above existing ground level). 3. That said, the applicant submits that the predominant height of the building (measured to the leading edge) is compliant and ranges from 10.29m to 9.96m. The small section of the building that exceeds the maximum height of buildings standard is setback from the edges of the building and will not be readily visible when viewed from Marvell Street or Fletcher Lane. This results in these elements not being visible from nearby or adjoining properties and public areas, or visible at such distances that they would not be conspicuous. The building will appear to be a three-storey building from Marvell Street and Fletcher Lane. Accordingly, despite the variation, the proposed building will remain consistent with the planned character of the locality. 4. I accept that the variations to the height of buildings standard are minor associated with the stairs, lift overrun, cupboard and toilet that occupy less than 4.2% of the total roof area. In all other respects, the development substantially complies with the height of buildings standard of 11.5m. Furthermore, as the components of the building that exceed the height of buildings standard will not be discernible when the building is viewed from surrounding streets, I am satisfied that the proposed development is consistent with the objectives of the height of buildings standard in objectives (b) and (c). In short, there are no discernible external impacts and the development will provide equitable access to the roof top yoga facility for hotel residents only. Even with the minimal exceedance of the height limit (confined to the building elements identified above), the development will complement the streetscape and character of the area which is predominantly three storeys. The height exceedance does not result in any adverse visual impact, view loss, reduced privacy or loss of solar access as that part of the building above the maximum permitted height is set in from the building edges and is substantially separated from neighbouring buildings. There is no relevant fourth storey in the locality from which a view would be available and the elements of the roof that exceed the building height limit are located centrally, and away from the boundaries of the site. These elements are enclosed windowless structures and do not in themselves allow for any overlooking of adjoining properties. Despite this, the non-compliant elements provide access to the roof terrace which has been purposely designed to be set in from the building edges and strategically bound by planter boxes to prevent any external overlooking. 5. The roof terrace is proposed to be used for yoga activities for hotel residents only. This is a relatively quiet activity and can be appropriately controlled by conditions of consent that controls the activity, use of amplified music, number of users and accessible hours. This will prevent the occurrence of any noise or audible privacy impacts. I accept that the proposed development would not result in loss of privacy. I also accept that the building above the maximum permitted building height will not result in any solar access impacts as the resultant shadows will be effectively cast onto the adjoining roof of the development during the critical winter months. 6. There is an expectation that the height of buildings standard will provide for three-storey development to provide an appropriate scale and density of development to support the Byron Bay town centre. This will be achieved by the proposed development. 7. The environmental planning grounds which support the contravention of the height of buildings standard relate to: * Both the front and rear of the site is bound by public roads, which, in this case, provides added separation to adjacent existing development. * Due to the setback of the non-compliant building elements from the edges of the proposed building, they would not be visible when standing in the public roads adjacent the site. Glimpses of these elements might be obtainable from public locations but over such long distances that the height variation would be immaterial. * The roof terrace will provide a desirable facility for future hotel residents. Access to the roof top facility could be provided by way of only uncovered stairs, potentially with stairlifts or platform lifts, to avoid non-compliances with the height of buildings standard. The storage cupboard and toilet could be deleted requiring yoga equipment to be transported from lower levels and the need for residents to rely on toilets within their hotel rooms or ground floor common facilities. This would result in unnecessary inconvenience and would provide an inferior and undesirable level of access. The design of the roof terrace, and associated lift access, provides a common area with enhanced amenity and equitable access, that would not be achievable with full compliance with the height of buildings standard. * The variation of the height of buildings standard facilitates the provision of open-air recreation space on top of the building for this town centre hotel without taking up valuable ground level retail space. Retail space at ground level is desirable to achieve Council's proposed activation of Fletcher Lane. More open-air recreation space, without adverse impacts on surrounding residents and businesses, results in a positive planning outcome. 1. Consequently, the proposal would be consistent with the following objects of the EPA Act at s 1.3: … (c) to promote the orderly and economic use and development of land, … (g) to promote good design and amenity of the built environment… 1. In addition to the above, there is an absence of material negative impacts resulting from the proposed variation from the height of buildings standard. Is the proposed development in the public interest? (cl 4.6(4)(a)(ii)) 1. The proposed development is in the public interest because it: * Facilitates a development that is consistent with the objectives of the standard and the intent of the B2 Local Centre zone under the BLEP 2014. * Provides a development that is consistent with the planning outcome envisaged by the Byron Bay Town Centre Masterplan. * Provides additional tourist accommodation and employment opportunities that will contribute positively to the local economy. * The occupants of the hotel will support the local commercial centre. 1. In regard to the first point, the objectives of the B2 Local Centre zoning of the site are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises. 1. The variation to the height controls allows equitable access to the open roof area. This enables additional uses (yoga space) that will serve the needs of people who visit the local area. Consequently, the proposal will satisfy the first objective of the zone. 2. In regard to the second and third objectives, the additional height would not reduce the employment opportunities or use of public transport, walking or cycling in the local area. Rather, the height exceedance is a consequence of the proposed yoga facility that will support the viability of the hotel that generates employment opportunities. The site is located within the town centre and is in accessible walking and cycling distance to a range of commercial and recreation facilities including the beach. Consequently, the proposal will satisfy the second and third objectives of the zone. 3. The access to the roof space ensures a more vibrant tourist and visitor accommodation experience. Consequently, the proposal will satisfy the fourth objective of the zone. Variation of the maximum FSR – cl 4.4 1. The applicant's written request under cl 4.6 prepared by GLN Planning Consulting Strategy seeking variation to the FSR standard in cl 4.4 of the BLEP 2014 describes the variation as relatively minor and that the additional floor space will be contained within the envelope of the approved building. 2. The site area is 1,012m2 and the applicable 1.3:1 FSR standard provides a compliant gross floor area (GFA) of 1,315.6m2. The GFA of the proposal (including rooftop toilet) is 1,590m2, that is an FSR of 1.57:1 and GFA exceedance of 274.4m2 (20.9%). Despite this, the proposed development will remain consistent with the objectives of the FSR standard, and effectively does not result in a change to bulk and scale relative to the approved development and will not cause any external impacts. 3. The area of non-compliant FSR primarily comprises the area of the spa located within the basement and the area of the two ground floor retail tenancies. The spa is located below ground level and will have no implications in regard to the visible bulk and scale of the building. The two retail tenancies could alternatively be allocated to semi-open ground floor hotel common area, as provided for by DA No.10.2016.97.1, but their inclusion provides a positive outcome that will contribute to the activation of Fletcher Lane consistent with the intent of an exhibited draft LEP and the objects of the EPA Act that seek to promote orderly and economic development and good design (s 1.3(c) and (g)). 4. The proposal is for a three-storey building form that is consistent with the existing approved DA on the site, other recently approved nearby development and the Byron Bay Masterplan. 5. The request for a variation to the maximum FSR standard outlines the justification for the contravention having regard to the circumstances of the case and demonstrates that it is in the public interest. 6. Clause 4.4(2) requires: (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. 1. Clause 4.5 of the BLEP 2014 outlines how to calculate the FSR of the building and subcl 4.5(2) relevantly provides the following definition: (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area. 1. The BLEP 2014 Dictionary provides the following definition for "gross floor area": gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes— (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes— (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement— (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. 1. That site survey (Kennedy Surveying dated 2 October 2015) provided with the development application shows that the area of the site is 1,012m2, which accords with the site area to be taken into account in calculating the FSR as required by subcl 4.5(3) of the BLEP 2014. Extent of variation 1. The architectural plans (Development Summary, Dwg 02 09) delineate that part of each floor that accords with the definition of GFA. In summary, the GFA of each level of the proposed building is: * Basements – 134m2 * Ground - 396m2 * Level 01 - 560m2 * Level 2 - 495m2 * Roof - 5m2 * TOTAL: 1,590m2 1. Despite the numerical extent of the variation, the variation to the FSR standard is, in effect, minor when it is recognised that the additional floor space will be contained within the envelope of the approved building. The site area of 1,012m2 and the applicable 1.3:1 FSR standard provides a compliant GFA of 1,315.6m2. The GFA of the proposal (including rooftop toilet) is 1,590m2, that is an FSR of 1.57:1 and GFA exceedance of 274.4m2 (20.9%). 2. The objectives of the FSR standard (cl 4.4) are: (a) to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality, (b) to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations, (c) to provide floor space in the business and industrial zones adequate for the foreseeable future, (d) to regulate density of development and generation of vehicular and pedestrian traffic, (e) to set out maximum floor space ratios for dual occupancy in certain areas. 1. The written request records that the original building was approved with an FSR of 1.3:1. The revised building design now has an FSR of 1.57:1. That is an additional 274.4m2 of defined GFA. The additional floor area primarily equates to the area of the additional health spa and retail spaces onto Fletcher Lane and associated back of house spaces. 2. The spa is located within a basement level and has no implications for the bulk and scale of the development. Excluding the GFA of the spa (134m2), the FSR of the development would be 1.4:1, that is an exceedance of approximately 0.146:1 (11.2%). 3. The additional retail spaces occupy what was previously a partially enclosed undercroft area on the ground floor that did not constitute defined GFA. A small area of the Fletcher Lane retail/spa area has been achieved by extending into the previous loading bay. This has not resulted in a perceptible increase in the size of the building. 4. The variation sought to this development standard is to permit a building that is effectively within the envelope of a similar approved development. No additional floor space is proposed that results in an increase in the size of the building. The external changes between the approved and proposed developments primarily relate to architectural refinements, including the rationalisation of balconies, that overall will reduce the apparent bulk and scale of the proposed building. 5. Consequently, and in circumstances where the Council considered that the bulk and scale of the previously approved building was acceptable, compliance with the development standard is said to be unreasonable and unnecessary in the current circumstances because the size of proposed building will present to the public domain in an almost identical fashion, albeit with a refined architectural appearance. The objectives of the control are achieved anyway and as such, no purpose would be served in requiring compliance. The building will continue to reflect a bulk and scale envisaged for the new Byron Bay town centre. 6. For the above reasons, I am satisfied that strict compliance with the maximum FSR development standard is unreasonable or unnecessary because the objectives of the standard are achieved notwithstanding non-compliance with the standard. 7. The proposal would satisfy the objectives of the standard to the extent relevant to the current proposal, and compliance with the FSR standard in this circumstance is considered both unreasonable and unnecessary for the reasons outlined below. Objective (a) - to ensure that new buildings are appropriate in relation to the character, amenity and environment of the locality 1. The proposed building has a similar bulk and scale to the approved building. The approved building demonstrates a bulk and scale of development achievable by a development that is both compliant with the FSR and determined to be acceptable by Council. The FSR breach results in a building bulk and scale that is unlikely to be discernible to a casual observer in the street in comparison to an alternate FSR compliant building. 2. The building will have a similar or superior character to the buildings at 4, 6 and 11 Marvell Street. No.4 Marvell Street was approved by the Court with a non-compliant FSR of 1.33:1 and contained a partial fourth storey (Ardill Payne & Partners v Byron Shire Council [2019] NSWLEC 1297). 3. In 2019, Council exhibited a Planning Proposal for the Byron Bay town centre that proposed, amongst other things, to delete the LEP FSR standard. While following an initial consultation period in November 2019, Council resolved not to now delete the LEP FSR standard, the original Planning Proposal implies (p 11) that Council has varied the FSR control on several occasions noting: "Analysis of proposed developments and previously approved variations to the FSR development standards in this locality demonstrated that such variations improved the functionality and economic viability of development, addressed site specific constraints and had no effects on the streetscape, character or local amenity." 1. The proposed building is of bulk and scale that is achievable by an FSR-compliant development as demonstrated by the existing approval for the site (DA No. 10.2016.97.1), and therefore illustrates the bulk and scale of development planned for the area. The proposal is compatible with the streetscape and character of the locality and would not result in unacceptable impacts on the amenity or environment of the locality. 2. Figure 3 below provides a photograph of No. 6 Marvell Street. This building is located immediately across the road from the subject site and reflects the scale and form of building permitted under the current planning controls and is similar to other recent developments observed in the locality. 1. Consequently, the proposed development will remain consistent with the existing and planned character of the area. 2. The current proposed development will substantially be contained within the existing envelope of the approved development which was found to be acceptable having regard to considerations such as amenity and impact on the environment. No material changes are proposed to the size of the building as a consequence of the variation to the FSR standard. The FSR exceedance will not give rise to any negative impacts on the amenity of the area or the environment, but will have a positive effect in improving the activation of the frontage of the development onto Fletcher Lane and the architecture of the building. 3. There are no impacts arising from the proposed development, and therefore as a consequence of the FSR exceedance, on the amenity of any adjoining property. The proposal does not result in any unacceptable overshadowing or privacy impacts. The only potential issue regarding visual impact identified during discussions with Council related to the proposed wall on the northern boundary of the site, adjacent the proposed ground floor pool area, in regard to its relationship to the pool area of the adjoining Byron Baythers Hotel at No.2 Fletcher Lane. This wall did not enclose countable GFA floor space and was irrelevant to the consideration of FSR. Despite this, the current amended plans have setback the wall 1m, in this location, and provided a landscape planter with maintenance access from the proposed pool area to resolve this potential issue. 4. Accordingly, this objective will be satisfied despite the proposed FSR variation. Objective (b) - to enable a diversity of housing types by encouraging low scale medium density housing in suitable locations 1. This objective is not relevant but will not be hindered as a consequence of the proposed FSR variation. Objective (c) - to provide floor space in the business and industrial zones adequate for the foreseeable future 1. The proposal will provide floor space in the business zone into the future. This proposal will optimise the provision of floor space in the B2 Local Centre Business zone by providing a variety of uses (tourist hotel, retail shops and spa) within a well designed and robust building that is expected to have a life that extends into the foreseeable future. Objective (d) - to regulate density of development and generation of vehicular and pedestrian traffic 1. A traffic impact assessment (Ratio Consultants September 2019) was prepared and submitted with the original DA which concluded that the proposal will not have an unacceptable traffic impact. While the proposal has since been amended, it will contain a slightly reduced number of car parking spaces (36 spaces) compared to the approved development (42 spaces). The number of car parking spaces reflect the potential for traffic generation, albeit this will vary dependent of the specific nature of a development. In this case, as the proposal is for a tourist hotel, its is expected that significantly less traffic will be generated relative to an out of centre hotel which relies substantially on passing trade. 2. A key part of the revised development is the provision of alternative transport for hotel guests. Two electric vehicles will be available for guest use and stored within the guest allocated spaces. A total of four parking spaces will be provided with electric car changing points. The hotel operator will also own, maintain and make available for the use of guests (by means of a booking system) a minimum of 6 bicycles. Two of these bikes will be electric bicycles (e-bikes). Objective (e) - to set out maximum floor space ratios for dual occupancy in certain areas 1. This objective primarily has a descriptive administrative purpose as opposed to a required environmental outcome, and to that extent is not relevant. Despite this, the proposed variation does not compromise the environmental outcome intended to be achieved for the standard as discussed above. 2. There is an expectation for development of an appropriate scale and density to support the Byron Bay town centre, that will not have any unacceptable environmental or amenity impacts. This will be achieved by the proposed development. Accordingly, the variation to maximum FSR standard will not compromise achievement of the objectives of the standard. Rather, this proposal offers an alternative means of achieving the objective. 3. The environmental planning grounds which support the contravention of the FSR of building standard relate to: * Both the front and rear of the site is bound by public roads, which in this case provides added separation to adjacent existing development. * A substantial component of the additional floor space (134m2 for the spa) is contained in a basement level that has no implications in regard to the size of the building. * The balance of the additional floor space will be substantially contained within the envelope of an approved building that reflects the bulk and scale of a building expected for the area, and will not be discernible to an observer in the street. * The proposed modified development reflects Council's contemporary planning controls for the town centre. Overall, the changes would have a positive planning outcome. In particular, the smaller retail tenancies and health spa will activate Fletcher Lane, potentially acting as a catalyst for other developments to follow. * The refinements to the approved building architecture will reduce the apparent bulk and scale of the building, albeit marginally. 1. The proposed development is for an anticipated three-storey building within the town centre of an appropriate scale and density of development to support the Byron Bay town centre, that is effectively contained within an approved building envelope. This context and those matters outlined above that relate to environmental planning grounds relevant in this case are explained further below. 2. The FSR exceedance is indiscernible having regard to the scale of development that could be expected in the area and relates to a development outcome that furthers the achievement of the objects of the EPA Act. The area of non-compliant FSR primarily comprises the area of the spa located within the basement and the area of the 2 ground floor retail tenancies and associated back-of-house areas. 3. The spa is located below ground and will not contribute to the visual bulk and scale of the development. It will, however, contribute to the types of services in demand in the Byron Bay town centre, presently and likely into the future. This will provide additional employment opportunities and an added attraction and amenity for residents and visitors to the centre, and will appropriately complement the proposed tourist hotel and improve its viability. The location of the spa in a basement level is appropriate from a design perspective given the nature of the services to be provided. 4. A hotel ground floor common area in a subtropical location such as Byron Bay can be expected to have large semi-open areas that are not countable as GFA but contribute to the bulk and scale of the building. Such a design outcome is illustrated by the existing approval for the site (DA No. 10.2016.97.1). 5. The current proposal provides an alternate design approach that allocates a relatively minor proportion of the ground floor space to retail outlets that front Fletcher Lane. The retail outlets are desirable from a planning perspective because they will provide a desirable façade presentation to Fletcher Lane, contribute to the activation of Fletcher Lane, add to the vibrancy of the town centre consistent with its existing and growing character, and provide additional employment opportunities. 6. The recently exhibited Planning Proposal for the Byron Bay town centre identifies Fletcher Lane, inclusive of the frontage of the subject site, as "Active Street Frontage." The relevant clause proposed to be introduced into the LEP will require "all premises on the ground floor of the building facing the street are used for the purposes of business premises or retail premises." The Draft LEP has been exhibited and is a relevant matter for consideration in the assessment of a DA pursuant to s 4.15(1)(a)(ii) of the EPA Act. 7. Consequently, the proposal would be consistent with the following objects of the EPA Act at s 1.3(c) and (g). 8. In addition to the above, there is an absence of material negative impacts resulting from the proposed variation from the FSR standard. 9. The proposed development is in the public interest because it: * Facilitates a development that is consistent with the objectives of the standard and the intent of the B2 Local Centre zone under the LEP. Consistency, with the objectives of the standard has been addressed previously under Wehbe method one ("1st way"): see Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827. * Provides a development that is consistent with the planning outcome envisaged by the Byron Bay Town Centre Masterplan and the recently exhibited Planning Proposal. * Provides additional tourist accommodation, added services and amenities, and employment opportunities that will contribute positively to the local economy. * The occupants of the hotel will support the local commercial centre. 1. In regard to the first point, the objectives of the B2 Local Centre zoning of the site are: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To encourage vibrant centres by allowing residential and tourist and visitor accommodation above commercial premises. 1. The development is consistent with, or is not antipathetic to, the objectives of the zone for the reasons discussed above and below. 2. The variation to the FSR standard substantially arises due to the use of part the ground floor tourist hotel common area for retail tenancies, and a Day Spa within the basement of the building. This will have a positive benefit by providing an additional business that will serve the needs of people who live, work and visit the local area, and consequently the generation of additional employment opportunities. 3. Further, the additional retail outlets will activate the Fletcher Lane frontage of the site, and contribute to making Fletcher Lane pedestrian friendly, which will improve the attractiveness of Fletcher Lane in general for further uses. The Day Spa will provide an added service and attraction for tourists considering visiting Byron Bay, including those staying at he proposed tourist hotel. Consequently, the Day Spa and activation of Fletcher Lane will act a catalyst for other developments to follow. Both additions provide further employment opportunities. This is consistent with the planning outcome envisaged by the Byron Bay Town Centre Masterplan. Consequently, the proposal will satisfy the first and second objectives of the zone. 4. In regard to the third objective, the additional FSR would not reduce the use of public transport, walking or cycling in the local area. The site is located within the town centre and is in accessible walking and cycling distance to a range of commercial and recreation facilities, including the beach. To the extent that there are public transport services in the town centre, the site is accessible to these. The activation of the Fletcher Lane frontage of the site, and making the Lane pedestrian friendly, will increase the attractiveness of walking through the Byron town centre. Consequently, the proposal will satisfy the third objective of the zone. 5. The proposed tourist hotel, including the roof top yoga facility, health spa and activation of the Fletcher Lane frontage, ensures a vibrant tourist and visitor accommodation experience and good integration with street activity. Consequently, the proposal will satisfy the fourth objective of the zone. 6. Accordingly, I am satisfied that a variation to the strict application of the FSR standard is appropriate for the proposed development on the site. 7. Lastly, I am satisfied with respect to subcll 4.6(4)(b) & (5) that concurrence to the proposed variations is not required by the Secretary pursuant to subcl 4.6(4)(b), as the Council as the relevant consent authority has the necessary delegation as set out in the Assumed Concurrence Notice issued by the Secretary of the Department of Planning and Environment dated 21 February 2018 (attached to DPE Planning Circular PS 20-002 dated 5 May 2020) and in any event, with the application to be determined by the Court, concurrence is not required (s 39(6) of the LEC Act). 8. In my assessment, the proposed variation to the maximum height of buildings standard and the FSR standard are not considered to be detrimental to any matters of significance for State or regional environmental planning. 9. In the circumstances of the application, I accept that there is no public benefit in maintaining the height of buildings or FSR development standards. To the contrary and consistent with the objectives of cl 4.6, allowing the variations will facilitate a development that achieves better and appropriate outcomes and represents an appropriate degree of flexibility in applying a development standard. 10. In relation to subcl 4.6(5)(c), I accept that no other matters have been nominated by the Secretary for consideration. 11. For the reasons outlined, I am satisfied that the parties' decision is one that the Court can make in the proper exercise of its functions under s 4.16(1) of the EPA Act; and as required by s 34 of the LEC Act, I am required to make orders reflecting the parties' agreement. Orders 1. The Court orders that: 1. The applicant's written request dated 7 May 2021 pursuant to cl 4.6 of the Byron Local Environmental Plan 2014 seeking variation of the development standard relating to the height of buildings contained in clause 4.3 is upheld. 2. The applicant's written request dated 13 May 2021 pursuant to cl 4.6 of the Byron Local Environmental Plan 2014 seeking variation of the development standard relating to floor space ratio contained in clause 4.4 is upheld. 3. The appeal is upheld. 4. The development described as: 1. demolition/removal of existing building; and 2. construction of a Mixed Use Development comprising hotel accommodation with ancillary swimming pool, rooftop open space, ground floor retail premises and basement health spa, being a 3 storey building above 2 levels of basement, for the land legally described as Lot 9 Section 26 DP 758307 and located at 7 Marvell Street, Byron Bay is approved subject to the determination at Annexure "A". ……………………….. S Dixon Senior Commissioner of the Court Annexure A (353279, pdf) ********** Amendments 07 September 2021 - Correction to cover sheet 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: 07 September 2021