Land and Environment Court of New South Wales CITATION : Parkes v Byron Shire Council [2004] NSWLEC 92 revised - 02/07/2004 APPLICANT Parkes PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10897 of 2001 CORAM: Tuor C. Development Application :- Change of use of an existing dwelling - to bed and breakfast establishment KEY ISSUES: Increase in intensity of development Impact of coastal erosion processes on development provision of parking Byron Bay Local Environmental Plan 1998 North Coast Regional Environmental Plan 1988 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 Local Government Act 1993 CASES CITED: Parkes v Byron Shire Council & Anor [2003] NSWLEC 237; Parkes v Byron Shire Council [2003] NSWLEC 104 DATES OF HEARING: 03-05/03/2004 DATE OF JUDGMENT: 06/15/2004 APPLICANT Mr J Priestly, Barrister SOLICITORS Beesley & Hughes RESPONDENT Mr I Hemmings, Barrister LEGAL REPRESENTATIVES: SOLICITORS Abbott Tout SECOND RESPONDENT Ms J Jagot, Barrister SOLICITORS Department of Infrastructure, Planning & Natural Resources JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10897 of 2001 Tuor C 15 June 2004 Parkes Applicant v Byron Shire Council Respondent Judgment Introduction 1 This appeal is against the refusal by Byron Shire Council (council) of a development application for a change of use of an existing dwelling at Lot 2 DP 1624 Don Street, Byron Bay, to a bed and breakfast establishment. The site and its context 2 The site is located on the Belongil Spit, which is a narrow sand spit between the Pacific Ocean and Belongil Creek and the North Coast Railway line. It has an area of about 607sqm with a frontage to the north onto Belongil Beach. To the west, the site adjoins a public reserve, to the south are houses and its eastern boundary is to Lot 1 DP 1623. Access to the site is via a three metre wide right of carriage way from Don Street over Lot 1. 3 The southern part of the site is developed with a house that is divided into two separate areas for holiday accommodation. This use is not approved and is the subject of separate legal proceedings. Each area has a living area, bathroom, kitchen, and bedroom at ground level. A mezzanine sleeping area is also provided in the western part of the building. A north facing deck is located along the full length of the building. Two car parking spaces are provided along the southern and eastern boundaries of the site. 4 There is a gentle slope across the site and a steep drop of about 5m down to the beach. The remains of an informal rock wall are around this escarpment. The wall was built without consent and encroaches onto public land. Erosion has occurred to the escarpment the east of the site (the end of Don Street) and to the west of the site (the Reserve). The distance from the top of the escarpment to the deck is about 7.8m at its closest point and 9.7m to the house at its closest point. Background and the proposal 5 The relevant agreed facts in relation to the history of the building on the site are: February 1978 Building application for a garage approved March 1980 Development application to convert the garage into a dwelling approved. The approval was on the basis that it was an existing structure and only minor works were involved. The determination referred to recommendations from Department of Public Works that development applications be refused for dwellings in the same locality at a greater distance from the shoreline due to the imminent danger of loss, or inundation, of the properties, as a result of cyclonic action or beach erosion. May 1997 Building application for a new roof approved. Although not applied for, the plans increased the size and changed the position of the dwelling to that previously approved. January 1998 Building Certificate under s172 of Local Government Act issued. This certificate was for the whole building then erected on the site described as a one and two storey timber building . 6 The history of the current application is equally complex but can be summarised as follows: 7 A development application (DA01/190) was lodged on 9 April 2001. The application was for proposed change of use of existing dwelling to a bed and breakfast establishment and excavation of parking spaces. The application was notified and no objections were received. On 24 October 2001, the applicant sought to amend the application to part of bed and breakfast establishment on Lots 1 and 2. Council did not agree to the application being amended and refused the original application on 27 November 2001. 8 The applicant lodged an appeal and amended plans were submitted in March 2002 which proposed a bed and breakfast establishment with the adjoining Lot 1. The applicant then sought to re-categorise the proposed development as holiday cabins. In Parkes v Byron Shire Council & Anor [2003] NSWLEC 237, Lloyd J found on 8 August 2003 that holiday cabins were a prohibited use within the zone. 9 The application was further amended in September 2003 to relate only to Lot 2. This proposal is the same as that originally lodged, except that alterations to the building are proposed to provide car parking instead of excavation. This proposal is the subject of this appeal. 10 The application proposes to change the use from a dwelling to a bed and breakfast establishment. This involves changes to the eastern corner of the existing building to facilitate manoeuvring for the parking of 2 cars. The details of this change have emerged during the hearing. The proposal will also result in the removal of the mezzanine; stair; second kitchen and dividing wall which currently enable the dwelling to operate as two separate tenancies. 11 Other applications have been lodged for the site, either separately or in conjunction with Lot 1, including an application for erosion protection works. These applications have either been refused by council or withdrawn by the applicant. The erosion protection works were rejected by Lloyd J in Parkes v Byron Shire Council [2003] NSWLEC 104 on the grounds that the application was unclear. In conclusion his Honour made the following observations: It is self evident that any erosion protection works along the beach front should include a cooperative and coordinated approach by the various property owners. A piecemeal approach as proposed by the applicant will be unsatisfactory. It may involve different owners adopting different approaches to the problem, none of which may complement the other and which, on the contrary, may have adverse consequences overall. 12 A further application for erosion works was lodged on 24 February 2004. Although referred to in evidence, this application was not considered as part of this appeal. Planning Framework 13 The site is zoned 7(f2)(Urban Coastal Lands) under Byron Local Environmental Plan 1998 (LEP 1998). A bed and breakfast establishment is permissible within this zone. The definition of bed and breakfast establishment in LEP 1998 is: Bed and breakfast establishment means a lawfully erected dwelling house: (a) that provides temporary home style or farm stay guest accommodation for the short-term traveller, and (b) in which not more than six guests would be accommodated, and (c) that contains no more than three bedrooms used for guest accommodation, and (d) that has a total floor area not exceeding 300m2 (excluding separate garages, sheds or the like). 14 The parties did not agree that the proposed development fell within the definition of a bed and breakfast establishment as a lawfully erected dwelling house and was therefore permissible. This was raised as a preliminary issue in the hearing. For the reasons I provided in the hearing, I have not dealt with this as a preliminary issue but for the efficient management of the appeal have dealt first with the merit issues. As the application fails on its merits, I have not addressed the question of permissibility. 15 The other relevant controls in LEP 1998 are cl 9(3) which states: Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 16 The objectives of the 7(f2) (Urban Coastal Land Zone) are: (a) to identify urban land likely to be influenced by coastal processes; (b) to permit urban development within the zone subject to the council having due consideration to the intensity of that development and the likelihood of such development being adversely affected by, or adversely affecting, coastal processes; (c) To permit urban development within the zone subject to the council having due consideration to: i. the need to relocate buildings in the long term; ii. the need for development consent to be limited to a particular period, iii. the form, bulk, intensity and nature of the development, and iv. continued safe public access to the site, and (d) to allow detailed provisions to be made, by means of a development control plan, to set aside specific areas within the zone for different land uses and intensive of development. 17 Clause 32 of the LEP requires the concurrence of the Director of Planning for development within the zone. The Director in deciding whether to grant concurrence must consider the following: (a) the likelihood of the proposed development adversely affecting, or being adversely affected by, coastal processes; (b) the need to relocate buildings in the long term; (c) the need for the development consent to be limited to a particular period; (d) the form, bulk, intensity and nature of the development, and (e) continued safe public access to the site. 18 Council requested the Director's concurrence but refused the application before a decision was made. The Minister then became a party to the appeal. 19 The North Coast Regional Environmental Plan 1988 (REP) also applies to the site. Clause 30 of the REP sets out objectives for coastal development including: (a) to enhance the visual quality of the coastal environment, (d) to minimise risks to people and property resulting from coastal processes. 20 Clause 32B(2) requires a consideration of the NSW Coastal Policy 1997, the Coastline Management Manual and the North Coast Design Guidelines. 21 The Coastal Policy is also prescribed under the Environmental Planning and Assessment Regulations as a matter to be considered under s 79C(1)(a)(iv) of the Environmental Planning and Assessment Act 1979. 22 The Coastal Policy provides a series of Goals, Objectives and Strategic Actions to achieve an integrated approach to the management of the coast. Goal 2 is to recognise and accommodate natural processes and climate change. Its related objective is to give the impacts of natural processes and hazards a high priority. To achieve this objective, Strategic Action 2.1.1 requires coastline management plans to be prepared by councils in accordance with the Coastline Management Manual. Strategic Action Plan 2.1.3 requires the physical and ecological processes and hazards to be considered in the assessment of development applications. 23 As part of the preparation of a coastline management plan, Council adopted the Byron Shire Coastline Hazard Definition Study in December 2000 and the Byron Coastline Management Study was on public exhibition at the time of the appeal. These studies identify the Belongil area as having experienced shoreline recession and being under an immediate and/or ongoing threat from beach erosion and long term recession processes. The Management Study proposes options to manage coastal hazards which can be categorised as follows: i. structures to hold back wave action or retain the sand ii. additional sand nourishment for the beaches iii. planned retreat from the coastline to enable the natural recession of the beach to progress. 24 The parties agreed that, although it came into effect after the development application was lodged, Byron Development Control Plan 2002 (DCP 2002) applies to the site. This DCP replaces Byron Development Control Plan No. 1 but contains similar provisions of relevance to the application particularly Part J: Coastal Erosion Lands. Under DCP 2000, the subject site is identified as being in Precinct 1 and as being under immediate threat from coastal erosion processes. 25 Part J2 of DCP 2002 element objective is to ensure the impact of coastal processes on potential development is minimised by limiting development and ensuring any development is only temporary. 26 An explanation to how DCP 2000 operates is at Part A4, which states that: Every development proposal must meet the element objectives. This will usually be achieved by meeting the prescriptive measures. The prescriptive measures are requirements that council considers are likely to meet the objectives and performance criteria of the particular control element. Alternatively council may be prepared to approve development proposals that are demonstrated to meet both the element objectives and the performance criteria. Issues 27 The Statement of Issues of council contained 14 issues. Those of the Minister contained 12 issues. 28 Following changes to the application these issues can be summarised into the key issues of whether: i. the proposal would be adversely affected by coastal processes; ii. the intensity of development is acceptable; iii. the car parking arrangements are adequate. 29 Expert planing evidence was provided by Mr V Yen, Town Planner, for Byron Shire Council; Mr J Clark, Team Leader, Local Planning for Department of Infrastructure, Planning and Natural Resources, for the Minister; and Mr R Aberline, Town Planner, for the applicant. 30 In addition to the expert planning evidence, the Court also heard expert engineering evidence on coastal processes from Mr D Lord, for the Minister and Mr A Jackson, for the applicant. 31 Mr J Begovic, for council and Mr G Alderson for the applicant provided expert traffic evidence. These experts were not cross examined but prepared a joint statement and agreed on parking arrangements that would satisfy the Australian Standard, which required changes to the existing building, site and an easement. While the parking arrangements could meet the Australian Standard both parties raised planning concerns about the proposed arrangements, which I will discuss later. Coastal processes 32 In answering the question of whether the proposed development would be adversely affected by coastal processes it is appropriate to consider whether the existing dwelling is already adversely affected. The answer to this question is clearly "yes". 33 The existing dwelling is within 7.8m of a coastal escarpment at its closest point and the site is identified in a number of studies and planning documents as being under threat of coastal processes. 34 As I understand the evidence of Mr Lord and the concerns of the Minister are that: i. This site and area experience severe erosion events or series of events and that there is evidence of long-term recession. This can impact on the land, any development of the land and people using the land; ii. the intensity of these erosion events does not need to increase but rather to occur in this location to result in erosion of this site. iii. the existing rock and concrete rubble erosion works have not been constructed to engineering standards, and the degree of protection they afford is uncertain. iv. the sand filled geotextile bags to the east and west of the site are designed as interim works that should provide some protection in minor events. v. Development on the site is likely to either require further erosion works to protect the structure and the land against erosion or an acceptance that in erosion events any structure would need to be demolished or removed. If this does not occur the structure may end up in the sea. 35 Of particular concern to Mr Lord is that unless erosion protection works are undertaken in a coordinated manner, the protection of one area may lead to greater erosion of other areas that are not protected. This has previously occurred where the protection of this site has resulted in the erosion of the adjoining reserve and to the end of Don Street. Mr Lord illustrated this point with a series of ortho photo maps showing movement in the erosion escarpment. The need for a coordinated approach reflects the recommendations of the Coastal Study and the observations of Lloyd J in Parkes v Byron Shire Council [2003] NSWLEC 104. 36 The main difference of opinion between Mr Lord and Mr Jackson was the meaning of immediate threat, the timing that would be available to evacuate people and to remove or relocate property and the degree of protection afforded by the ad hoc rock walls and the geotextile bags. 37 In summary, Mr Jackson's opinion was that the existing erosion works provided a degree of protection and that there would be sufficient time for the existing structure on the site to be relocated through the removal of the deck and by cutting the house in half. In a worst-case situation, there would be sufficient time to demolish the house. 38 Part J2 of DCP 2002 seeks to address the threat of erosion by permitting new development only of a temporary nature, which is sufficient distance from the coastal escarpment (20 m) so that it is not likely to be impacted by a storm event and of demountable construction so that it can be relocated if necessary. 39 The existing dwelling, being constructed apparently without approval and prior to these requirements, clearly does not satisfy them. The dwelling now lawfully exists and the experts agree that a storm event may result in its demolition. The existing development is likely to be adversely affected by coastal processes. It therefore follows that the proposed development is also likely to be adversely affected by these processes. Whether this occurs in a 12 hour period or a 72 hour period it is still a matter of concern and would place pressure on public resources to protect the land, structure and people. Intensity of use 40 The issue before the Court was whether the proposed change of use from a dwelling house to a bed and breakfast was an intensification of the use of the site and consequently whether the adverse affect from coastal process would be greater. While I have addressed the evidence before me on this issue I do not agree that the question is whether it is an intensification of use but rather whether the intensity of the proposed development is acceptable and meets objective (b) and (c) of the zone. 41 The main concerns of Mr Yen and Mr Clark were that the use of the dwelling as a bed and breakfast establishment with a live-in proprietor would create multiple uses that would therefore increase the intensity of use. This concern centred on the risk to the patrons of the bed and breakfast as they would not be aware of the threat posed by the seaside location of the facility. Mr Yen's opinion was that the alterations and the change of use should meet the element objective in the DCP and to achieve this the whole dwelling should be temporary and be able to be relocated. 42 Mr Aberline's evidence was that the bed and breakfast did not intensify the use, rather patrons of the bed and breakfast were more likely to evacuate quickly and with less possessions and concerns about the asset than if it were used only as a dwelling. Further Mr Aberline stated that the removal of the mezzanine and the consequent loss of a bedroom de-intensified the use. Mr Aberline stated that there were no prescriptive measures in Part J2 of the DCP that related to a change of use. Therefore the development did not need to be 20m from the escarpment or be relocatable. In his opinion the proposal met the element objective as the structure is modest and the use is temporary in nature as it could cease at any time. 43 I find that the bed and breakfast is an intensification of the use of the site simply by the fact that where there is currently now one use as a dwelling and there will be two uses: a dwelling for the proprietor and accommodation for visitors. The use of the property will change from being not only a home but also a business. While the size of the building will be reduced by the removal of the mezzanine and its use as two separate tourist accommodation should cease, these are not relevant considerations as they were not approved, although the mezzanine is ratified by the Building Certificate. 44 I also find that this intensification is not acceptable. The draft conditions of approval seek to mitigate the current situation by measures such as: Condition 4(b): requires the building to be demountable. This would require the existing dwelling to be rebuilt in modular construction. The applicant opposed this condition. It would not make sense to rebuild the house in its current design and location. This condition is clearly unreasonable. Condition 6: requires the building to be demolished if the erosion escarpment encroaches within 20m or, where it is already within 20m, encroaches further. The applicant's proposed wording was that the consent for the bed and breakfast would cease if the escarpment moved closer and that it would revert to its use as dwelling. Condition 9: requires the building to be able to be relocated within 12 hours. The applicant's proposed wording was that the building be demolished within 72 hours. The ability to relocate the building within 12 hours is limited by its current construction. It is more realistic that the dwelling would be demolished in a major storm event but I do not accept that the longer period of 72 hours is justified. 45 While, the imposition of Condition 6 and 9, may mitigate the proposal and improve the current situation, I do not consider that it would be of utility to impose these conditions when the applicant opposes them. Without these conditions and a commitment to their implementation, I find that due consideration has not been given to the requirements of objective (d) of the zone. 46 As stated above, coastal processes adversely affect the existing building and its use as a house. The intensity of this use in its existing structure and current location on the site is therefore not acceptable. However, as it is approved or has a building certificate, it can remain. I have found that the change of use is an intensification of use, however, even without this, the intensity of the use proposed in the existing structure in its current location is of itself unacceptable when considering objectives (b) and (c) of the zone. The change of use would further entrench this development on the site and increase pressure to protect an asset, which is a home as well as a source of income. 47 While the prescriptive measures in Part J2 of the DCP do not specifically relate to change of use, the experts agreed that the change of use is development and it must meet the element objective: To ensure the impact of coastal processes on potential development is minimised by limiting development and ensuring any development is only temporary. 48 The change of use from a house, which is already threatened by coastal processes, to a use where the proprietor lives and there are guests does not limit development. The use is not temporary even if applicant's condition that the use cease if the escarpment reaches a certain point, were imposed. Such a condition may be appropriate if the escarpment were at the distance recognised as being sufficient for development to occur. However, this is not the case, due to erosion from previous storms, part of the house is already at a distance from the escarpment that is unacceptable for new buildings and must be of concern for existing buildings. While the current situation can remain, it is not acceptable for a new development, albeit a change of use, to be approved with such constraints. I find that the proposal is not consistent with objectives (b) and (c) for the zone of LEP 1988 and must therefore fail. Parking 49 I will briefly deal with the issue of car parking. Council's concern was that the car park space to the south of the building (carpark A) necessitated the removal of parts of the bathrooms. These changes were necessary for the space to meet the width of 3 m required under the standard for a car park between two walls. The width currently provided is only about 2.4 m. 50 The other concern was that to ensure that a car in carpark A could reverse out in a forward direction, the corner of the building needed to be angled and the carpark space to the east of the building (carpark B) needed to be extended approximately 4.6 m forward of the building line towards the beach. Mr Hemmings' submission for the council was that this resulted in a degree of uncertainty as to the works proposed and their impact. Mr Yen's evidence was that the visual impact of parking even behind the building line was unacceptable 51 The other concern was that the parking arrangement necessitated an easement over the adjoining land (Lot 1) and the extension of its car parking space also forward of the building line. 52 Mr Priestly's submission, for the applicant, was that while these works were required to comply with the standard, in this situation they were not necessary and that discretion should be exercised. Particularly the need to demolish part of the rear of the house to provide a complying car park width where this area is already used for car parking. 53 The demolition required to meet the standard does not make sense but it further emphasises that the site and the existing structure are not suited to the proposed use. Orders The Court orders that: 1. The appeal is dismissed 2. The development application to change the use of an existing dwelling to a bed and breakfast establishment at Lot 2 DP 1624 Don Street, Byron Bay, is refused. 3. The exhibits may be returned. _______________________ Annelise Tuor Commissioner of the Court 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.