Hugh Ermacora & Joyce Lillyin v Byron Shire Council [2005] NSWLEC 700

Land and Environment Court of New South Wales

CITATION : Hugh Ermacora & Joyce Lillyin v Byron Shire Council [2005] NSWLEC 700

APPLICANT Hugh Ermacora & Joyce Lillyin

PARTIES : RESPONDENT Byron Shire Council

FILE NUMBER(S) : 10441 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- conversion of storeroom to an office/reception/meeting room - 2 holiday cabins - road upgrade - vehicular access - disabled access - minimum site area for holiday cabins - bushfire hazard - disputed conditions of consent

Byron Local Environmental Plan 1988 (BLEP) State Environmental Planning Policy No. 1 (SEPP 1) LEGISLATION CITED: Byron Rural Settlement Strategy 1998 Rural Fire Act 1997

CASES CITED: Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112

DATES OF HEARING: 29-30/09/2005

DATE OF JUDGMENT: 12/07/2005

APPLICANT Mr H Ermacora, self represented

RESPONDENT LEGAL REPRESENTATIVES: Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Hoffman C

7 December 2005

10441 of 2005 Hugh Ermacora & Joyce Lillyin v Byron Shire Council

JUDGMENT 1 This is a class one appeal No. 10441 of 2005 between Hugh Ermacora and Joyce Lillyin v Byron Shire Council in regard to the conditions of approval in DA 10.2002.194.1 for a proposal to convert an existing detached studio into a commercial holiday cabin and to erect a second detached holiday cabin on Lot 6 DP 874010 being No. 151 Boogarem Road, Koonyum Range in the Byron hinterland of Mt Jerusalem National Park. The council's consent in DA 10.2002.194.1 was issued on 5 May 2004, and it approved the conversion of the existing studio to a holiday cabin only. 2 The studio was once the house on the property but a new house was approved in 1993 when the ownership was about 57 ha. The original house was, in the 1993 consent, converted to the studio with a condition that it not be used as a dwelling nor for any form of residential occupation. A storage shed also exists near the original house or studio. The shed is proposed in this application to become a new "studio" for the purposes of an office/reception/meeting room for the overall use that is termed Rural Tourist Facility. 3 Also approved in the 1993 consent was a machinery shed which had not been completed at the time of this hearing. It had been commenced by the erection of masonry foundations and an elevated concrete floor slab. The subfloor is currently used as a battery power storage room fed by a large solar panel erected nearby. The proposal is to construct the second holiday cabin on top of the concrete slab. It is called Cabin B. 4 The previous studio that is approved as a holiday cabin is called Cabin A and has existing a bathroom and a kitchenette. It has a septic tank system connected that was approved by council when the studio was the original house. There is also a detached existing toilet and shower room about 10 m north of Cabin A. The proposed second cabin called Cabin B, being lower down the hill, is proposed to have its own new septic system. The applicant wanted, during the hearing, to change this to a composting toilet sewage system, but no details were tendered. The respondent objected to the change. 5 The existing water tanks are not contested by the council and are considered sufficient for both facilities. 6 The three buildings involved in this application are within 100 m of the right of carriageway and a private road that serves this site and a few other properties. The holiday cabin site is in the south-west corner of Lot 6 at about the half way point of the private road that loops back to a public road about 600 m in either direction. 7 The new house built under the 1993 consent is about 220 m away through the forest from the right of way and the other three buildings. The new house is near the northern corner of the site being Lot 6. 8 The house is perched a short distance from a 300 m high cliff. There is a panoramic view over the coastal mountains and plains to the ocean north of Byron Bay township. 9 The site is elevated at about AHD 530 m on the highest point locally of the Koonyum Range. Mr Ermacora said the cliff is a favourite launch point for experienced hang-gliders. 10 The site Lot 6 is about 12 ha in area and beside it, Lot 7 is about 45 ha in area. Lot 6 is forested except for areas around the house and the three other buildings that have been cleared for bush fire inner protection areas (IPA) and for some distance beyond the IPA the understorey and leaf litter on the ground has been cleared to provide a bush fire outer protection area (OPA). Together these form Asset Protection Zones (APZ). Lot 7 is vacant and forested also and was in the ownership of the applicant at the time of DA 10.2002.194.1. 11 The issues are: Vehicular Access 1.1 The Applicant has failed to demonstrate that adequate and sustainable access to the site can be provided.