Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602

Land and Environment Court New South Wales

Medium Neutral Citation: Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602 Hearing dates: 5- 9 June 2023, written submissions on 7 August 2023 Date of orders: 12 October 2023 Decision date: 12 October 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed. (2) The appeal is dismissed. (3) Development Application 10.2022.137.1 seeking consent for the demolition of existing structures, removal of 36 trees and construction of a two-storey mixed use development across two buildings at 9-13 Clifford Street, Suffolk Park (Lot 1 DP 635305 and Lot 1 DP 853706) is determined by way of refusal. (4) Exhibits are returned with the exception of Exhibit 2, A, B and E. Catchwords: DEVELOPMENT APPLICATION – demolition of structures, tree removal, construction of a two-storey mixed use development across two buildings – tree removal and management of bushfire risk – impact on endangered ecological community Coastal Cypress Pine Forest –whether the development adequately avoids or minimises impacts upon biodiversity values – whether the proposed development has a serious and irreversible impacts on biodiversity impacts – whether the proposed landscaping of the development is adequate – whether the likely impacts of the development are reasonable – appeal dismissed Legislation Cited: Biodiversity Conservation Act 2016, ss 1.3, 1.5, 1.6, Pt 2, Sch 2, Pt 7, ss 6.2, 6.4, 6.12, 6.7, 7.2, 7.4, 7.7, 7.13, 7.16 Biodiversity Conversation Regulation, cll 1.4, 6.5, 6.7, 7.1, 7.2, Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979, ss 4.17, 8.15, 8.7 Land and Environment Court Act 1979, s 34 Threatened Species Conservation Act 1995, Pt 2, Div 5 Cases Cited: Blake v Ku ring gai Council [2021] NSWLEC 1461 Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 Bulga Milbrodale Progress Association Inc. v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347; [2013] NSWLEC 48 Tomasic v Port Stephens Council [2021] NSWLEC 56 Texts Cited: Byron Shire Development Control Plan 2014 Department of Planning, Infrastructure and Environment, Biodiversity Assessment Method, October 2020 Department of Planning, Industry and Environment, Guidance to assist a decision-maker to determine a serious and irreversible impact NSW Department of Planning and Environment, Coastal Cypress Pine Forest in the NSW North Coast Bioregion Endangered Ecological Community NSW Department of Planning and Environment, NSW State Vegetation Type Map NSW Rural Fire Service, Planning for Bushfire Protection 2019 Standards Australia, AS 4970 2009 Protection of Trees on Development Sites Category: Principal judgment Parties: Denwol Suffolk Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) A Seton (Solicitor) (Respondent)