Byron Hotel Limited v Byron Shire Council [2003] NSWLEC 296

> Land and Environment Court of New South Wales

CITATION : Byron Hotel Limited v Byron Shire Council [2003] NSWLEC 296 APPLICANT: Byron Hotel Limited PARTIES : RESPONDENT: Byron Shire Council FILE NUMBER(S) : 10989 of 2002; 20914 of 2003 CORAM: Moore C KEY ISSUES: Development Application :- Bulk and scale Traffic LEGISLATION CITED: State Environmental Planning Policy No . 1 Local Government Act 1993 - s 176 - 178 CASES CITED: Codlea Pty Limited v Byron Shire Council [1999] NSWCA 399 DATES OF HEARING: 9, 15, 17 and 22 October 2003 EX TEMPORE JUDGMENT DATE : 10/22/2003

APPLICANT: Mr C Drury, solicitor SOLICITORS: Phillips Fox

LEGAL REPRESENTATIVES: RESPONDENT: Mr P Clay, barrister SOLICITORS: Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10989 of 2002 and 20914 of 2003

Moore C

22 October 2003 Byron Hotel Limited Applicant v Byron Shire Council Respondent Judgment

1. The two matters that are presently before the Court are matters 10989 of 2002 and 20914 of 2003. 2. Matter 20914 of 2003 will effectively disappear (by dismissal by consent of the parties) as a consequence of the proposed consent orders put for the Court's approval in the class 1 proceedings. 3. The class 1 matter originally came before the Court as a contest concerning two conditions relating to a proposed second stage development at premises to the rear of the Great Northern Hotel between Jonson Street and Fletcher Street, Byron Bay, the second stage being the intermediate lands between the hotel and the stage 1 development which has a frontage to Fletcher Street. 4. There are a number of objections that went beyond the matters that were the areas of residual dispute between the council and the applicant. They might be summarised, through both the oral evidence of Mrs Conlan on behalf of Beacon Inc and Mr Ian Hartley, who gave evidence this morning by telephone, as being objections to the bulk and scale of the proposed built form; the possible vehicle and pedestrian impacts of the development and the appropriateness or otherwise of both the usage of the grey water reuse scheme and (pressed by Beacon) the inadequacy of the s 94 contributions plan, against which the contributions for this proposal were assessed. Beacon and Mr Hartley also raised the broader philosophic issue of the commercial planning framework for the central business district of Byron Bay. 5. With respect to what I would describe as the three broad philosophic issues as opposed to specific issues relating to the proposal for the site, I can simply observe that the philosophic issue of whether or not there ought be three-storey development in the CBD at Byron Bay and the general planning context that that would create is a matter for the council to consider in a policy context - it is not a matter that is appropriate for me to determine in these proceedings. The bulk and scale issues, to which I will return shortly, are specific to these proceedings, and relate to the proposed built form on the proposed site, in the approved surrounding context, which includes the prior approval for the stage 1 development fronting Fletcher Street. 6. Secondly, there is the proposition that was advanced by Mrs Conlan that the recycling and reuse of grey water ought to be used for what one might describe as a general public purpose environmental credit rather to sustain future development. Whilst it might well be a philosophic proposition with which I would find some sympathy, particularly given one of my past lives and far greater issues of that nature in the Sydney area with which I had to deal on a regular basis, it is not a matter that it is appropriate for me to deal with in these proceedings, as that is a philosophic policy matter that would require to be dealt with on a Shire and possibly a region-wide basis within the local water supply context. Indeed, in addition, it might well be an issue that was outside my jurisdiction being an appropriate arrangements issue for the purposes of cl 45 of the Byron LEP: see the decision of the Court of Appeal in Codlea Pty Limited v Byron Shire Council [1999] NSWCA 399. In terms of the present proceedings, there is the uncontested expert evidence before me, with which Mrs Conlan does not take issue, that the proposed grey water reuse scheme is technically appropriate and functional. 7. With respect to the specific matters that arise concerning the site, I did indicate to the parties my desire that they consider and discuss the option of altering the proposed traffic arrangements to require all traffic exiting from Lawson Lane to turn to the left, thus avoiding the possibility of conflicts with southbound traffic in Fletcher Street. During a short adjournment, there have been discussions between the parties on that point. The position has been put to me by Mr Clay, on behalf of the council, is that the council was not satisfied that that was an appropriate treatment, because of what was expected to be the inability of the traffic arrangements to the north of the intersection of Lawson Lane and Fletcher Street to cope with the resulting traffic that would be sent in that direction. 8. With respect to the issue of bulk and scale of the subject proposal, the model to which the Court has been taken (although not formally in evidence, has been treated as if it were and I propose to have regard to it on that basis) discloses that the proposed built form is broadly consistent with the approved built form to the east and with the existing built form to the west, although there are a number of modest exceedances to the height limits. I was advised from the Bar Table, that these had been the subject of a State Environmental Planning Policy No. 1 objection which had been successful and which is not contested in these proceedings. I am satisfied that the bulk and scale of the proposal are consistent with that of the surrounding development and are not inappropriate in the circumstances. 9. I note, with respect to pedestrian traffic and vehicle traffic conflicts which are a matter raised by Beacon and by Mr Hartley in his telephone evidence this morning, that there is a 2 m ground level footpath provided along the Lawson Lane frontage of the proposed development, that is on its northern side, which provides an appropriate opportunity for pedestrian conflicts in that area to be resolved. There is nothing before the Court in the present circumstances that would permit it to consider or address what I would understand from the modelling and from the plans to be the residual area of potential pedestrian vehicle conflict, which is that along the northern wall of the Great Northern Hotel - that parcel of land and those premises not being before the Court in these proceedings. 10. Under all the circumstances, I am satisfied that there is no appropriate basis upon which the Court should decline to enter into the consent orders proposed between the applicant and the council in these proceedings. Therefore, it is my intention, upon submission by the parties to me in Chambers of an agreed set of conditions to accompany the appropriate consent orders, to make the appropriate consent orders upholding the appeal and granting approval for the development.