Land and Environment Court of New South Wales CITATION : Byron Hotel P/L v Byron SC [2005] NSWLEC 265 APPLICANT Byron Hotel Pty Limited PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10271 of 2000 and 10989 of 2002 CORAM: Hoffman C Appeal :- two s 96 applications to amend 2 existing consents. * floodwater storage capacity * protection of buildings from flooding * sewerage loads and treatment plant capacity * vehicle ramp gradients - sight safety distances - headroom and pedestrian crossings of ramps KEY ISSUES: * adequacy of truck loading dock * public access to toilets. Byron Local Environmental Plan 1988 Australian Standard 2890.1 and 2890.2 LEGISLATION CITED: Byron Development Control Plan 2002 Environmental Planning and Assessment Act 1979 DATES OF HEARING: 15/02/2005 DATE OF JUDGMENT: 04/22/2005 APPLICANT Mr M. Bofur, solicitor of Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr S. McKelvey, solicitor of Byron Shire Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 22 April 2005 02/10989} BYRON HOTEL PTY LIMITED v BYRON SHIRE COUNCIL 00/10271} JUDGMENT 1 This is two class 1 appeals, 10271/2000 and 10989/2002 between Byron Hotel Limited and Byron Shire Council in regard to two s 96 applications to amend DA 10.1999.782 and DA 10.2001.648.1. At a mention on these appeals the parties indicated they had reached consent orders but final documents had to be prepared and checked. The proposals had been exhibited for public submissions and there were no objections. The parties indicated that provided no oral evidence was needed they wanted the Court to deal with the draft orders and other documents in chambers when received. 2 The documents were duly received, the last letter of confirmation from the respondent seeking consent orders being dated 15 April in Exhibit 1. Appeal 10271 of 2000 dealt with the stage 1 development of the site known as the Byron Village. The Court issued consent on 20 December 2000. There had been two other s 96 applications approved since that time. 3 Appeal 10989 of 2002 dealt with stage 2 development of the Byron Village and it was approved by council on 16 September 2003, but was the subject of an appeal on conditions, and after negotiation, consent orders were issued on 22 October 2003. Although in two stages with two consents the development is on a combined parcel of land comprising five allotments, including the rear of the Great Northern Hotel that fronts Jonson Street, one of the main streets in the Byron Bay Shopping Centre. 4 Stage 1 and 2 are mainly on lots that currently have houses on them at the rear of the hotel. Stage 1 fronts Fletcher Street that runs parallel to Jonson Street, but it has shops and frontages also to Lawson Lane and Byron Street. 5 Stage 2 fronts Byron Street and Lawson Lane between stage 1 and the drive in bottle shop of the hotel. The vehicle drive through runs between Byron Street and the lane. It also acts as a drainage easement for overland flow in major storms and in lesser events for a large stormwater pipe that is to be put in as part of the development. This relates to the site being part of a passage for stormwater from the east part of the town to the west where it eventually goes into Belongil Creek. 6 In major storm events the engineers calculate floodwaters could back up into the site on the Byron Street frontage. The original consents require the buildings to be designed to raise the ground floor levels and the vehicle entry ramps to the basement car parks above the 1 in 100 year flood level. This required the design of a split level footpath on Byron Street so that disabled access could be gained to the raised floor level of the Byron Street shops, whilst the road level was kept at around existing levels to ensure flood storage capacity was not reduced. 7 The latter is important in long term planning because in major flood situations, waters that are displaced by land filling usually flood some other locations that have previously been flood free. This aspect required consideration in the s 96 applications. 8 Another concern in Byron township is the limited capacity of sewerage treatment works. As a result calculations on the sewer loads created by any new development are critical. This aspect required consideration in the s 96 applications. 9 Changes to the floor plans and vehicle basement entry ramp and exit ramp proposed in the s 96 applications were affected by the above as well as the normal considerations such changes create. 10 Issues in both appeals were the same and were: 1. Clause 45 Byron Local Environment Plan 1988 . (a) Has sufficient information been supplied to enable proper assessment of the arrangements for the provision for services with regard to modifications to various floor spaces? (b) Can consent authority be satisfied that sufficient arrangements have been made for the provision of services, taking into consideration modifications to various floor spaces? 2. Grades on exit ramp to Lawson Lane. (a) Whether the grades shown on plan 9707/23A modification 3 comply with the minimum requirements of the Australia Standard 2890.1 and council standards across the section of ramp incorporating the 1.5m wide footpath. 3. Loading dock. (a) Whether the loading dock shown on plan 0105/7B, modification 48 is of adequate size as recommended by Australia Standard 2890.2 to service the proposed development. (b) Whether the loading dock shown on plan 0105/16B, modification 96, complies with the minimum height requirements of Australia Standard 2890.2. 4. Access to toilets from the public road. (a) Whether the access to the toilets shown plan 0105/9C, modification 13, from the public footpath in Fletcher Street is undesirable in terms of amenity and safety. 5. Minimum floor levels for flooding. (a) Whether the reduction in floor levels back to RL2.6AHD, from RL 2.8AHD, as shown on plan 9707/9C, modification 21, comply with Part K of DCP2002 in terms of providing no free board to the estimated 1 in 100 year flood level. (b) Whether the reduction in floor levels back to RL 2.6AHD from RL 2.8AHD, as shown on plan 9707/9C, modification 21, is contrary to the provisions of Clause 24 of Byron Local Environmental Plan 1988. 11 The council accepted a report dated 17 November 2004, by Mr M Scott, consultant town planner. This followed earlier reports filed in the s 96 applications. The November report said, in summary: 1. The changes to the plans altered the size of some restaurants and shops and deleted three motel bedrooms, and one bedroom in a manager's suite in both stages 1 and 2. Also toilets in public areas of the proposal were to be controlled for use by patrons only, restaurants and shops would provide a key on request. This changed the calculation to the sewerage ETs and the on site grey water collection treatment and re-use system. On balance the reductions and increases calculated to an overall reduction of 0.85 ET in these s 96 applications, and there was a pre-existing reduction of 0.33 ET from an earlier s 96 approval on stage 1. The sewerage consultant, Greg Alderson & Associates had confirmed this. The discharge to the council's sewer would, in fact be reduced from previous approvals and the grey water treatment equipment would not be compromised by the changes. 2. The changes to the physical layout of the public spaces, toilets, and location of windows et cetera , improved management and circulation and surveillance of the development, and was now acceptable. 3. The gradients of the vehicle access ramps to the basement have been changed. The exit ramp to Lawson Lane was to have increased width to improve driver safe vision distances and manoeuvring between the ramp and the lane. The head room of the ramp was reduced to provide disabled access on the floor above from stage 2 into the stage 1 pool area. The changes still allowed compliance with Australia Standard 2890 and stage 1 consent conditions. Ardill Payne, Engineers, stated: "For one way traffic the exit ramp complies with Australian Standard 2890.1, 2004, Sight Safety Distances. For two way traffic the exhaust duct at the top of the ramp adjacent to the footpath needs to be splayed to achieve compliance with site safety distances." This splay was shown on the drawings. The ramp gradients also comply in most aspects with the Australian Standard whilst ensuring the crest of the ramps are above the 1 in 100 year flood level, so that the basements do not get inundated. At the transition points between gradients in some locations there is a one per cent non-compliance with required grade. But the engineer applied a vehicle template to the profile and is satisfied there is adequate clearance for vehicles not to scrape their undersides. The footpath along the Lawson Lane frontages of stages 1 and 2 is dimensioned at two metres wide in accordance with condition C.18(F) of the stage 1 consent. Along most of the length the pavement extends further into the site, giving up to 4 metres of width. At the car park exit ramp the footpath is designed in at the correct cross falls. 4. The loading dock to serve both developments is in stage 2. It has already been moved in previous s 96 approvals. The latest location is about 6 m east of the previous approval, so it does not conflict with inspection and servicing hatches to the on site grey water collection and treatment system. The new location will allow rigid trucks up to 11 m to use the dock, but they will need multiple point turns in Lawson Lane, 8 m trucks will be able to use the loading dock with only two point turns. The engineer says; that currently few trucks servicing the hotel exceed 8 m, and that is unlikely to change in the future for stages 1 and 2. The occasional 11 m truck would, it is assumed, not hamper laneway traffic to an unacceptable degree. The height of the loading bay is 4.5 m, although the roller shutter would intrude on that. The height should be sufficient for all trucks that would use the bay. Mr Scott notes, that most customer arrivals and departures with luggage et cetera , will occur at the Fletcher Street drop-off bay at the main foyer, or in the basement for people with cars. Deliveries by some light service vehicles are also likely to use the drop off bay. 5. Floor levels of shops 1 and 2 in stage 1 fronting Byron Street, are sought to be lowered. The previous consents required all ground floor commercial floor space to be at or above RL2.6AHD, which is the calculated 1 in 100 year flood level. A previous s 96 actually preferred the floor levels at RL2.8ADH to give a clearance above flood waters. Shops 3 and 4 would remain at RL2.8, the rest of the ground floor was at RL3.1 or above. It had been thought the split level footpath design on the Byron Street frontage would enable disabled access to all shops from the public footpath whilst retaining flood storage capacity in the roadway. Detailed engineering designs have revealed that shops 1 and 2, that are at the western end of the stage 1, cannot achieve disabled access from the road to the footpath and into the shops unless the roadway is also raised. This would reduce the flood storage capacity. Council engineers and Ardill Payne & Associates now recommend that shops 1 and 2 have floor levels reduced to RL2.6AHD. This would mean the floors of those two shops would be awash in a 1 in 100 year flood. But damage could be minimised by approving only suitable uses in those shops, and requiring any goods or fixed fittings and electrical outlets et cetera , to be designed with racks or leads or mounting points above RL3.1AHD. Flooring materials could be of types not damaged by water. The flood category in that part of the site is "low hazard flood fringe" and RL3.1AHD is the normal minimum floor level requirement in this location to give 500 mm freeboard above RL2.6. Clause 24 of the Byron Local Environmental Plan 1988 allows discretion subject to technical considerations, and Byron Development Control Plan 2002 allows exceptions to be considered on their merits. Mr Scott assessed the engineer's recommendations against the statute and controls and concluded that shops 1 and 2 should be allowed floor levels of RL2.6AHD. The appropriate conditions referred to above could be applied when individual development applications were lodged for those shops. 12 The parties had agreed to these changes and the only amendments needed to the previous consents was the deletion of the references to the previously approved drawings, and the insertion of appropriate references to the amended drawings. The reference numbers for these were incorporated in the consent orders. 13 Some drawings have been amended in the course of final negotiations following the hearing and sent to the Court. For clarity I have made two composite sets of the drawings from the documents filed, one for each appeal. Exhibit A contains copies of the drawings for appeal 10271 of 2000, being stage 1, and Exhibit B contains copies of the drawings for appeal 10989 of 2002, being stage 2. 14 Having considered the documents and reports I have come to the conclusion that all relevant matters have been properly considered and lead to the conclusion that there is nothing that would justify refusal of the consent orders sought by the parties. 15 Therefore the orders of the Court, by consent, part herewith published, are as follows: In appeal 10271 of 2000: 1. The appeal is upheld. 2. That pursuant to section 96 of the Environmental Planning and Assessment Act 1979, Development Consent granted by the Court in respect of Development Application No 10.1999.782 be modified as follows: (i) That Condition (a) (as inserted into the Conditions of Development Consent by Court Order 2(ii) of 25 February 2003) be deleted and replaced with the following: A) Development to be in accordance with the plans drawn by Christine Vadasz Architects Pty Limited, with drawing numbers as listed below and as submitted and stamped by the Court: DWG No. Date Drawing Title 9707-00F June 2004 Cover Sheet 9707-03 July 1999 Site plan – cnr Byron/Fletcher Sts 9707-04 July 1999 Site Plan – Byron St 9707-05D June 2004 Level 2 car park 9707-06C June 2004 Level 2 car park 9707-07D June 2004 Level 1 car park 9707-08C June 2004 Level 1 car park 9707-09D June 2004 Ground floor 9707-10C June 2004 First floor 9707-11C June 2004 Second floor 9707-12C June 2004 Roof plan 9707-13A July 1999 Landscape plan (landscaping & service bay only) 9707-13B Feb 2003 Landscape plan 9707-16B June 2004 Typical unit layout 1 9707-17B June 2004 Typical unit layout 2 9707-18B June 2004 Typical unit layout 3 9707-19D June 2004 Elevations – south & east 9707-20B June 2004 Elevations – north & west 9707-21C June 2004 Sections – A & B 9707-22 July 1999 Shadow diagram – June 21st 9707-23B June 2004 Ramp detail & safety barrier Exhibit F; and Exhibit M All as amended by and subject to any conditions of this consent. 3 Exhibits A & B and documents filed are retained by the Court. In appeal 10989 of 2002: 1. The appeal is upheld. 2. That pursuant to section 96 of the Environmental Planning and Assessment Act 1979, Development Consent granted by the Court in respect of Development Application No 10.2001.648.1 be modified as follows: (i) That Condition 1 be deleted and replaced with the following: 1 Development is to be in accordance with approved plans Development to be in accordance with the plans drawn by Christine Vadasz Architects Pty Limited, with drawing numbers as listed below and as submitted and stamped by the Court: DWG No. Date Drawing Title 0105-00E June 2004 Cover Sheet 0105-01 Oct 2001 Perspectives – Stage 2 0105-02A June 2004 Site Plan – Stage 2 9707-05D June 2004 Level 2 car park 9707-06C June 2004 Level 2 car park 9707-07D June 2004 Level 1 car park 9707-08C June 2004 Level 1 car park 0105-07C June 2004 Ground floor – Stage 2 0105-08B June 2004 First floor – Stage 2 0105-09B June 2004 Second floor – Stage 2 0105-10A June 2004 Roof plan – Stage 2 0105-11A June 2004 Landscape Plan –ground floor-Stage 2 0105-12A June 2004 Landscape Plan – first floor – Stage 2 0105-13B June 2004 Typical room layouts 1 0105-14B June 2004 Typical room layouts 2 0105-15A June 2004 Elevations – south 0105-16C June 2004 Elevations – north & west 0105-17B June 2004 Sections C & D 0105-18 Oct 2001 Shadow diagram – June 21ST 0105-19 Oct 2001 Overall site plan – Stages 1 & 2 All as amended by and subject to any conditions of this consent. The colours and materials must be in accordance with the approved plans. The approved plans and related documents endorsed with the Court stamp must be kept on site at all times while work is being undertaken. 3. Exhibits A & B and documents filed are retained by the Court. ________________________ K G Hoffman Commissioner of the Court ljr 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.