Land and Environment Court New South Wales Medium Neutral Citation: Town Planning Studio Pty Ltd v Byron Shire Council [2023] NSWLEC 1143 Hearing dates: Conciliation conference on 7 and 8 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application 10.2022.324.1, for construction of a new dual occupancy (attached) development, at premises known as 15 Dandaloo Way, Ocean Shores, subject to the conditions contained at Annexure "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders. Legislation Cited: Byron Local Environmental Plan 2014, cll 2.3, 4.1E, 4.3, 4.4, 6.6 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environment Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: Basix) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Texts Cited: Byron Development Control Plan 2014 Byron Shire Council's Community Participation Plan 2019 Category: Principal judgment Parties: Town Planning Studio Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Wilshire Webb Staunton Webb (Respondent) File Number(s): 2022/286672 Publication restriction: No Judgment 1. COMMISSIONER: Town Planning Studio Pty Ltd (the Applicant) has appealed the refusal by Byron Shire Council (the Respondent) of Development Application 10.2022.324.1 seeking consent for the removal of trees and construction of a two-storey dual occupancy dwelling (the Proposed Development) at 15 Dandaloo Way, Ocean Shores (the Subject Site). 2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act. 3. The Applicant's Development Application was notified between 12 to 25 August 2022 under the provisions of Byron Shire Council's Community Participation Plan 2019, and no submissions were received in response to that notification. 4. On 7 and 8 March 2023, the Parties participated in a s 34AA conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant's amended development application, subject to conditions. A site inspection had been undertaken prior to the commencement of the conciliation conference. 5. Under the Parties' agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant's amended development application, subject to conditions. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties' decision if the Parties' decision is a decision that the Court could have made in the proper exercise of its functions. 7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. section 4.6 of SEPP R&H requires a consent authority, or the Court on appeal, to consider the contamination and remediation of land when determining a development application, and in relation to this: 1. The Subject Site was registered as part of Deposited Plan 238451 which was created on 18 September 1969; 2. the Subject Site is part of a long-established residential subdivision; 3. the Subject Site is undeveloped and unlikely to be contaminated; 4. the Proposed Development comprises the construction of residential development, and the nature of the development as well as the context of the Subject Site are such that further assessment is not warranted for this proposal; and 5. I am satisfied that the provisions of s 4.6 of SEPP R&H have been satisfied in relation to the Proposed Development in the current appeal. 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: Basix) 2004 (SEPP BASIX), the Applicant has provided a BASIX certificate (No. 1315515M_04 dated 3 March 2023) in fulfilment of the requirements of SEPP BASIX. 2. in relation to the provisions of Byron Local Environmental Plan 2014 (BLEP): 1. the Subject Site is zoned R2: Low Density Residential under the provisions of cl 2.3 of BLEP, and the Proposed Development, being a dual occupancy dwelling house within the R2 zone, is permissible with consent; 2. the Proposed Development complies with all relevant development standards in BLEP as summarised below: 1. in relation to cl 4.1E concerning the minimum lot size for dual occupancies which for the Subject Site is 800 m2 and the subject site has an area of 986 m2; 2. in relation to cl 4.3 concerning the maximum height of buildings for development on the Subject Site, the maximum overall height limit is 9m and the Proposed Development does not exceed this standard; 3. in relation to cl 4.4 concerning floor space ratio (FSR), the provisions of cl 4.4(2A) provides that the maximum floor space ratio for a dual occupancy development on the Subject Site which is zoned R2 Low Density Residential is 0.5:1 and the Proposed Development has an FSR of approximately 0.31:1 in compliance with the applicable FSR standard; 4. in relation to cl 6.2 concerning earthworks, the Proposed Development includes excavation works to create driveways, footings and plumbing connections, and these works are permissible with consent; 5. in relation to cl 6.6 concerning essential services, the Subject Site is serviced by electricity, water, sewage and stormwater connections are available, and suitable traffic access is proposed as part of the Proposed Development; 1. in relation to the provisions of Byron Development Control Plan 2014 (BDCP) the Parties have considered the provisions of BDCP, and they agree, and I am satisfied, that the Proposed Development is compliant with the provisions of the following relevant parts of BDCP or if not, it achieves the objectives of the controls in BDCP, including: 1. the Applicant's proposed excavation works do not exceed the prescribed measures for excavation on BDCP; 2. retaining structures are required for the purposes of site stability given the sloping nature of the property, and these have been assessed as satisfactory; and 3. erosion and sediment controls will be applied during construction works to maintain water quality from the Subject Site; 1. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act. 1. Having considered the advice of the Parties, provided above at [7], I agree that: 1. regard has been had to the objectives of the Subject Site's zoning in determining the Applicant's development application; 2. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and 3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied; 4. approval of the Proposed Development is in the public interest. 1. Further, I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 3. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 4. The Court notes that the Applicant has amended development application No. 10.2022.324.1, with the agreement of Byron Shire Council, the Respondent, as the relevant consent authority, pursuant to s 37 of the Environmental Planning and Assessment Regulation 2021, in accordance with the amended plans and updated BASIX contained at Condition 1, including: 1. updated Architectural Plans, updated BASIX, and updated Protective Fencing Plan that were filed in Court on 8 March 2023; and 2. an updated BASIX Certificate No. 1315515M_04 dated 3 March 2023. Orders 1. The Court orders that: 1. The appeal is upheld; 2. Development consent is granted to development application 10.2022.324.1, for construction of a new dual occupancy (attached) development, at premises known as 15 Dandaloo Way, Ocean Shores, subject to the conditions contained at Annexure "A". ………………………….. M Chilcott Commissioner of the Court 286672.22 Annexure A (396997, 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: 31 March 2023