Land and Environment Court New South Wales Medium Neutral Citation: Metrocorp Projects (Aust) Pty Ltd v Byron Shire Council [2024] NSWLEC 1506 Hearing dates: 10 and 11 July 2024 Date of orders: 22 August 2024 Decision date: 22 August 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders: (1) The Court, in exercising the functions of Byron Bay Council, as the relevant consent authority, under s 39(2) of the Land and Environment Court Act 1979, approves, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, the application to amend Modification Application No 10.2014.417.4 in accordance with the amended plans and additional information filed with the Court on 17 July 2024. (2) The appeal is upheld. (3) Development Consent DA 10.2014.417.1 is further modified in the terms in Annexure A. (4) Development Consent DA 10.2014.417.1 as modified by the Court is Annexure B. (5) The exhibits are returned with the exception of Exhibits 2 and A, which are retained. Catchwords: APPEAL – modification application – residential flat building – rooftop pool – visual impact – privacy – disagreement on conditions of consent – procedural issues relating to supplementary expert report – lay objections Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 39 Byron Local Environmental Plan 2014, cll 4.3, 4.6 Environmental Planning and Assessment Regulation 2021, s 113 State Environmental Planning Policy (Resilience and Hazards) 2021 Category: Principal judgment Parties: Metrocorp Projects (Aust) Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: T Hale SC (Applicant) A Seton (Solicitor) (Respondent) Solicitors: McCartney Young Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/440071 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a modification application for an approved residential flat building which seeks consent for the addition of a rooftop swimming pool and associated development at Lots 1-6, SP 16094, also known as 43 Lawson Street, Byron Bay (site). 2. The proceedings are brought by the applicant under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) and are against the refusal of modification application No 10.2014.417.4 (MA) by Byron Shire Council (Council). Setting 1. I rely on Council's statement of facts and contentions filed 13 February 2024 (Ex 2 in the proceedings) for much of the descriptive material which follows. 2. The site is rectangular in shape with a 21.3m southward facing boundary to Lawson Street. The site has a northward facing boundary onto a grassed foreshore reserve and park adjacent to the beach at Byron Bay. The site has an approximate area of 711m2. Erected on the site is a residential flat building. The site is highlighted yellow in Figure 1. Figure 1 - Site and context (source: Ex 2 p 4) 1. I concur with Council that the surrounding development is reasonably described as medium density residential and mixed use development. Planning context 1. The site and adjacent properties along the north side of Lawson Street are zoned R3 Medium Density Residential under Byron Local Environmental Plan 2014 (BLEP). The other side of Lawson Street is zoned MU1 Mixed Use, and the land further east is zoned E1 Local Centre. An extract from the relevant zoning map is provided in Figure 2. Figure 2 - Zoning map excerpt (source: Ex 2 p 3) 1. The site has a maximum Height of Building requirement of 9 m under BLEP. 2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) applies to the DA. The site falls within an area designated as being "Proximity Area for Coastal Wetlands" and is mapped as being "Coastal Use Area" and "Coastal Environment" under Ch 2 of SEPP R&H. Procedural background 1. The originating development application which is sought to be modified (DA 10.2014.417.1) was approved by Council on 10 December 2015. The MA was lodged with Council on 8 March 2023. A total of 16 submissions were received during public notification comprising two objecting submissions and 14 submissions in support. The MA was refused on 8 June 2023. The applicant lodged a review application on 10 August 2023, subject to amending plans, which was also determined by way of refusal. On 5 December 2023, the applicant commenced appeal proceedings. 2. The appeal commenced with a site inspection undertaken on the morning of 10 July 2024. I can note that the Court heard oral submissions from two objectors during the course of the site inspection. In particular, the objectors raised concern about potential privacy impacts of the proposal on immediately neighbouring residential development either side of the site. 3. I note here that the town planning experts providing advice to the Court in this matter were M Hanisch (appointed by the applicant) and D Waghorn (appointed by Council). Issues 1. The key issues in the proceedings were essentially twofold. The first was the implications of rooftop use on privacy of neighbours. From Figure 1 it can be seen that the immediate neighbours lie generally to the east and west of the site. With the opportunity for a site inspection, it was clear to me that the town planning experts were correct in concluding that there would not be unreasonable privacy impacts in regard to the property to west. There were potential impacts of rooftop activity upon the property to the east, which I turn to below. 2. The second issue related to the visual implications of proposed rooftop structures and use. The site is in a prominent location in the immediate vicinity of Byron Bay Beach and a beachside park. A popular walkway running parallel to the beach, and along the northern bounds of the beachside park, can be seen in Figure 1. 3. During the site inspection I had the opportunity to observe from the beachside park and pathway and take some advice from the town planning experts in relation to the expected appearance of the proposed balustrade and pool structure from the park and walkway. Here, for example, it was noted that given sightlines to the roof, when standing in the beachside park, the proposed roof structures would not appear until one was standing some 25m from the property boundary. That is to say, the sightline to the proposed structures would otherwise be interrupted by the leading edge of the proposed building. When walking along the pathway, the angle of the sightline to the roof is less acute and roof top structures and activity would be more visible with the plans before the Court at that point in time. 4. It is noteworthy here that the proposed modification comprises a building height of 10.07m (Joint Expert Report Town Planning Ex 5 par 1.9), breaching the height of building standard of 9m under cl 4.3 of BLEP. 5. The town planning experts indicated in Ex 5 their differing positions with respect to these key issues. Essentially Mr Hanisch was supportive of the proposal and Mr Waghorn against in relation to both the issues of neighbour privacy amenity and visual impact. Applicant outlines intention to seek to amend the development application 1. On day two of the hearing, the applicant outlined an intention to seek to amend the DA. The substance of the amendments proposed the further increase to the setback of the swimming pool and other rooftop use area from the building edge. The particulars are as follows (Further Joint Expert Report Town Planning filed 24 July 2024 (Further JER) par 1.1 and my own interpretation): * Swimming pool, deck and landscaping that is: * Setback 10.7m (planter box edge) and 11.8m (pool edge) from the northern (ie beachside park) boundary – with the pool a little over 4m wide (including its walls) the proposed trafficable deck area upon the roof would be setback around 16m from the northern boundary. * Deck and pool areas setback 6m from the eastern and western (ie side) boundaries, with landscaping to the adjacent building edge. * Deck area setback 11.3m from the southern (Lawson Street) boundary (not any significant change to that proposed in the plans before the Court, which had already been deemed as acceptable to the planning experts). 1. When concept plans of the proposed amendments were tabled on day two of the hearing (marked Ex E), the town planning experts were called to give oral evidence in regard to them. The oral evidence was essentially supportive of the grant of consent to the application, with the intended amendments, having regard to the two key issues of neighbour privacy amenity and visual impact. Council also indicated that, mindful of the advice of Mr Waghorn, in concept, the intended amendments resolved Council's contentions, subject to certain anomalies being corrected. 2. At this point I adjourned the hearing and made orders requiring the finalisation and filing of the applicant's intended amending plans and the preparation of a further report by the town planning experts (which I refer to as the Supplementary JER) in regard to the applicant's intended amendments to the modification application. The parties were also requested to file without prejudice conditions after these documents had been reviewed. In my orders, I noted liberty for the parties to restore in the usual manner. Consideration 1. It is difficult to quantify the specific setback increases (ie between the plans originally before the Court and the amending plans) as the dimensions were not always clearly shown in the plans originally before the Court. However, the changes were considerable and resulted in the town planners' agreement, generally, that both of the key issues were adequately addressed as a consequence of the amending plans, subject to a point of disagreement on conditions of consent which I will come to below. 2. That is to say, the experts advised the Court that the increases to side setbacks of both the pool and the deck meant that privacy concerns relating to the property to the east were resolved. I can readily accept this advice. I also note and accept the advice of the experts in relation to conditions of consent as follows: (1) restricting access to areas outside of the pool and deck area other than to carry out maintenance and (2) confining lighting such as to mitigate potential unreasonable impacts from light spill (Supplementary JER par 3.1-3.3). 3. The experts also agreed that the amending plans ensure that the visual impact of the rooftop structures, as particularised in these plans, would "not have any adverse visual impacts when viewed from the public domain" (Supplementary JER par 1.1). Here I understood the experts to be finding that the increased setback from the northern boundary meant that there would be no unreasonable visual impact of proposed rooftop structures or from persons in the pool or standing on the trafficable deck even when viewing from the pathway along the northern side of the beachside park. This seems to me to be a reasonable conclusion having viewed the sightline drawings (Applicant's Amended Plans filed 17 July 2024 DA 09 Issue K). 4. The experts also proposed conditions of consent relating to prospective future elements on the rooftop which may have potential to bring about a visual impact. These particularly related to umbrellas and the like. There was disagreement from the experts on this point. Particulars of the experts' disagreement on consent conditions relating to visual impact. 1. Mr Waghorn took the view that umbrellas and cabanas have the potential to erode the acceptable visual presentation of the proposal as presented in the amending plans. It was suggested that a typical cantilevered umbrella would be about 2.8m in height and would be generally visible from within 24m from the northern boundary (ie within the park) and 5m of the southern boundary (ie Lawson Street). Mr Waghorn sought to have both permanent and temporary umbrellas, cabanas and the like limited to 1.4m above the deck level, or to a height of RL 16.240 (Supplementary JER pars 1.6). The proposed condition read as follows: "Any furniture installed or placed within the trafficable deck area on the rooftop must not be higher than RL 16.240 at its highest point. No furniture or the like is to be placed or installed anywhere on the rooftop outside of the trafficable deck." 1. Mr Hanisch thought it reasonable to expect that people using the rooftop terrace may do so with an umbrella for shade, especially given recent approvals not restricting umbrellas on rooftops in other nearby locations (Supplementary JER pars 1.9). However, given the locational context in this instance, Mr Hanisch understood that "a large scale permanent shade structure may not be acceptable as it would contribute to the built form scale of the development" (Supplementary JER pars 1.11). Mr Hanisch disagreed with Mr Waghorn's suggestion limiting umbrellas and the like to 1.4m above the deck level. As an alternative, Mr Hanisch expressed the following opinion (Supplementary JER pars 1.13): "I do however accept that any umbrellas or the like that are brought onto the rooftop terrace must be removable and not permanently affixed to the building. This would limit the size and scale of the shade structures that could be brought onto the rooftop. This could be achieved with a condition worded as follows: Any permanent furniture of shade devices (ie umbrellas) installed within the trafficable deck area on the rooftop must not be higher than RL 16.240 at the highest point. Any furniture higher than 16.240 must be removable and removed from the roof terrace (or lowered to below RL 16.240) when the terrace is not being used". 1. Essentially, I accept the position of the experts that, with the amending plans, the visual impact of the rooftop structures indicated in the plans would not have an unreasonable adverse visual impact when viewed from the public domain. The most important public viewer positions here are the beachside park and beachside walkway. The walkway in particular is a very popular public domain feature and the built form at the site, along with the other buildings fronting the beachside park in the site vicinity, establish built form character. Without the amending plans, it seemed clear enough to me that the proposal would not be in keeping with the established built form character and visual setting. With the amending plans, the building's encroachment into established height lines would be acceptable because it would essentially not be visible from public areas. The amendments make good on an obvious synergistic potential available at this site. That is, the appeal of the rooftop in these areas is the expansive views available towards the sea. These views are just as appealing if they are setback to a point where the occupation of the rooftop does not offend established building height lines apparent in popular public domain settings. Submissions from the parties 1. After the filing of the Supplementary JER, the parties made submissions in relation to the conditions proposed by the experts and outlined above. The applicant made initial comments which were received by the Court on 25 July 2024. The respondent provided its comments on the conditions proposed by the experts a little later on that day. The applicant was provided with opportunity to make a further reply submission which was received on 26 July 2024. 2. The respondent was supportive of the condition proposed by Mr Waghorn (see [24]), for the reasons posited by Mr Waghorn. 3. The applicant argued against either of the proposed conditions referred to in the Supplementary JER concerning furniture on the rooftop. The applicant's submissions can be considered as threefold. First is that the experts had gone beyond their remit in proposing these conditions (online Court 25 July 2024, 11:40 AM): "The Applicant submits that the planners, Mr Waghorn and Mr Hanisch, were directed by the Court to prepare a further short joint report to give effect to the oral evidence given to the Commissioner on the second day the hearing. The plans before the Court at that time depicted the same furniture that is now depicted in the amended plans that were the subject of the planners' oral evidence. Neither planner, in oral evidence, made reference to the furniture. The Applicant is of the view that the supplementary report that has been prepared goes beyond the leave granted by the Court to the parties to file a short report for the purposes of finalising the matter. In circumstances where the Applicant believes that either condition is likely to be unlawful and is outside of the leave granted by the Court, the Applicant has chosen not to incorporate either condition into its version of the draft conditions of consent filed with the Court." 1. It is the case that at the conclusion of Day 2 and prior to adjourning I made remarks to the experts in relation to the Supplementary JER approach. My interest was in efficiency, and in reducing the need for them to duplicate evidence already given orally, and not a concern to limit the evidence the experts wished to provide to the Court on the amending plans. 2. The applicant's second point, for me, was that there had been agreement reached with the concept plan on Day 2 of the hearing and that the "proceedings were resolved (in accord with the concept plan)" (email from applicant containing letter dated 26 July 2024 par 2(d)) and should be finalised on this basis (online Court 25 July 2024, 11:40 AM): "The Applicant is of the view that the matter should progress in accordance with the general agreement reached on the concluding day of the hearing and the Applicant respectfully asks the Court to finalise the matter and make Orders to determine the matter by the grant of consent on the basis of the Applicant's draft conditions of consent filed with the Court today." 1. Here the applicant seems to misconstrue the particular setting for these proceedings. The Court hears the appeal de novo and needs to make its own determination, taking into account of the evidence and submissions. The proceedings are not resolved through the indication of a "general agreement" between the parties even if it were based on finalised plans let alone a concept drawing. The setting would be different if the parties had filed an agreement in relation to the matter under s 34(3) of the LEC Act, after which, provided there is jurisdictional power, the Court "must dispose of the proceedings in accordance with the decision (agreed between the parties)" 2. The applicant's third point was that the condition proposed by Mr Waghorn was inappropriate on merits and in law. It took a "fine tooth comb" approach and risks the law concerning itself with trifles and it related to the regulation of furniture when the more apt concern was whether a breach of the height control by a building was acceptable (Letter from applicant received by email 26 July 2024 par 2(g): "A condition that seeks to regulate the use of umbrellas is a "fine tooth comb" approach that risks the law concerning itself with trifles – an activity that is so de minimis it can and should be overlooked (Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018 NSWLEC 153, Molesworth JA adopting the reasoning of Senior Legal Member Byard in Mollica v Shire of Bulla (1992) 9 AATR 157). The occasional use of an umbrella, during a limited period of the year (summer) and during a limited period of the day, that may be seen from the public domain, is respectfully not a matter that arises in the proceedings and is not a matter that should now become a matter of public record through the consent..." 1. I will attend to this point below when drawing conclusion on these conditions proposed by the experts. Conclusion in regard to the conditions proposed by the planning experts relating to visual impact 1. It is my conclusion that the condition offered by Mr Hanisch is appropriate in all of the circumstances. I disagree with the applicant that it is unreasonable to seek to control the umbrella structures and the like in this setting. It is clear that were large permanent umbrellas or cabanas located on the rooftop there would be potential for adverse effect on built form character and visual setting as perceived from the important public domain areas to the north in particular. However, I agree with Mr Hanisch that the condition proposed by Mr Waghorn does not provide a practical resolution of the reasonable need for persons enjoying the rooftop to have some shade from the sun, particularly during warmer months. This is due to the specified height limit of shading devices to 1.4m. Mr Hanisch's suggestions on managing umbrellas through requiring such a height limit when not in use provided a practical response. In line with this finding, on balance and mindful of the scale of the now proposed setbacks, and on all sides, the temporary presentation of umbrellas and the like, and only located within the identified trafficable areas, are not perceived as unreasonable. Evaluation provisions under ss 4.55(2) and (3) of the EPA Act 1. With respect to s 4.55(2)(a) of the EPA Act, it is clear to me that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. The proposed changes relating to rooftop development and use do not change the substance of the proposal as a residential flat building. With approval of this proposal the development would be substantially and essentially the same as the development for which consent was originally granted. 2. Similarly, I have been advised that the notification requirements under s 4.55(2)(b) and (c) have been met, as relevant. In respect to s 4.55(2)(d), I have given consideration to the objecting submissions, including the oral submissions made during the site inspection. I find that the amended proposal responds appropriately and reasonably to the concerns raised in these objecting submissions. 3. In respect of s 4.55(3), I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. Here I rely on the explanation of relevant provisions provided by Council in Ex 2 and in the explanation of relevant material with the Council's taking me through of applicable provisions in its Bundle of Documents (Ex 3) on Day One of the hearing. This includes the consideration of the fact that the proposal breaches the height of buildings standard under cl 4.3 of BLEP. Mindful of North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468 at 481 D; [1998] NSWSC 163, and subsequent decisions, there is no requirement for a jurisdictional finding, under cl 4.6 of BLEP, with respect to this. I can note also that I accept the advice of Council that there are no merits or jurisdictional concerns in relation to SEPP R&H in this instance. 4. Further in regard to s 4.55(3), I have given consideration to the reasons given by the consent authority for the grant of the consent that is sought to be modified. This was a matter raised in Ex 2 (pp 11 and 12) and nothing raised in these reasons has significant influence on the decision I make in this matter. Conclusion 1. In the circumstances, and particularly based on the plan amendments proposed by the applicant and the conditions relating to potential visual impact of rooftop structures proposed by Mr Hanisch, the proposal warrants the grant of consent. The conditions proposed by the parties have been varied only to the extent to exclude the condition relating to visual impact proposed by Mr Waghorn and including the conditions of Mr Hanisch. The other conditions recommended by the experts had already been agreed by the parties. Orders 1. The Court orders: 1. The Court, in exercising the functions of Byron Bay Council, as the relevant consent authority, under s 39(2) of the Land and Environment Court Act 1979, approves, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, the application to amend Modification Application No 10.2014.417.4 in accordance with the amended plans and additional information filed with the Court on 17 July 2024. 2. The appeal is upheld. 3. Development Consent DA 10.2014.417.1 is further modified in the terms in Annexure A. 4. Development Consent DA 10.2014.417.1 as modified by the Court is Annexure B. 5. The exhibits are returned with the exception of Ex 2 and A, which are retained. P Walsh Commissioner of the Court ********** Annexures A Annexure B 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: 22 August 2024