Hultgren v Byron Shire Council [2012] NSWLEC 1189

Land and Environment Court New South Wales

Medium Neutral Citation: Hultgren v Byron Shire Council [2012] NSWLEC 1189 Hearing dates: 16, 17 July 2012 Decision date: 17 July 2012 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal dismissed Catchwords: DEVELOPMENT MODIFICATION - Expansion of vacant land uses in conjunction with adjoining circus school, whether substantially the same development Legislation Cited: Environmental Planning and Assessment Act 1979 Byron Shire Council Local Environmental Plan 1988 State Environmental Planning Policy (Temporary Structures) 2007 Byron Shire Council Development Control Plan 2010 Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 Category: Principal judgment Parties: Rick and Gayle Hultgren (Applicant)

Byron Shire Council (Respondent) Representation: Ms G Hultgren (Applicant in person)

Mr A Seton (Respondent) File Number(s): 10342 of 2012

Judgment

Background 1This appeal is against modified conditions of consent, particularly Condition 2, imposed on a s 96 application in respect of a development consent to use 12 - 14 Wollongbar Street, Byron Bay (vacant land) for activities associated with the Byron Entertainment Centre (BEC). The subject land being adjacent to the BEC. 2The consent has been subject to a number of modifications since originally granted in December 2006. The effect of the consent is to allow the use of the vacant land in conjunction with the use of the BEC activities. 3The full description of the proposal and planning controls is contained within the Statement of Facts and Contentions on which I rely. It states that the application pursuant to s 96(1) and (1A) of the Environmental Planning and Assessment Act 1979 seeks to modify Development Consent No 10.2008.648.1 issued by the Respondent on 21 December 2006, which gave approval for the use of the premises at 12 - 14 Wollongbar Street, Byron Bay for the expansion of an activity area to be associated with the Byron Entertainment Centre located on 13 - 17 Centennial Circuit, Byron Bay (as modified by the Respondent on 18 October 2009 (Development Consent No 10.2006.648.2)). 4The site is described as Lots 123 and 124 in DP 1040988. It has an area of 1,989 sq m. It adjoins the rear of the BEC building and it is currently vacant and used for the warming up and training of performers at the circus for such activities at juggling, trapeze, fire stick twirling and uni-cycle riding. 5The original Condition 2 states: 2. Approved usage This development consent gives approval for activities related to the Place Of Public Entertainment and Recreational Facility on LOT: 16 DP: 812667, 13-17 Centennial Circuit BYRON BAY. Activities on lot 123 & 124 DP: 1040988 include warm-up sessions for performers and artists during approved concerts and other activities related to the Byron Entertainment Centre. Included in this consent is the placement on the site of two (2) portable steel containers for the storage of equipment necessary for the activities of the Byron Entertainment Centre and four temporary tents. The tents are approved as shelter from the elements for the benefit of performers only and are to be dismantled and stored at the completion of the events. This approval does not permit the playing of live or recorded music or activities performed before an audience on the site. 6The applicant sought a number of amendments, including the deletion of the words "warm up and training sessions for performers and artists during approved concerts." 7Consequently, the modification was approved as follows: 2. Approved usage This development consent gives approval for activities related to the Place Of Public Entertainment and Recreational Facility on LOT: 16 DP: 812667, 13-17 Centennial Circuit BYRON BAY. Activities on lot 123 & 124 DP: 1040988 include warm-up sessions for performers and artists during approved concerts, circus activities and other activities related to the Byron Entertainment Centre in accordance with the SEPP (Temporary Structures and Places of Public Entertainment) 2007. Included in this consent is the placement on the site of two (2) portable steel containers for the storage of equipment necessary for the activities of the Byron Entertainment Centre and four temporary tents. The temporary structures are approved as shelter from the elements for the benefit of performers only and are to be dismantled and stored at the completion of the events in accordance with the SEPP (Temporary Structures and Places of Public Entertainment 2007. This approval does not permit the playing of live or recorded music or activities performed before an audience on the site. 8However the applicant is dissatisfied with this modified condition because it does not allow for the desired extent of expansion of operations necessary for the circus/training activities. 9Consequently, the contentions identified by Council are summarised as: * Whether the modification relates to substantially the same development as approved * Adequacy of information * Amenity impacts in terms of the proposed expanded usage * Tent conditions 10The appeal on the modified conditions commenced by way of a binding s 34 conference and the applicant was invited to respond to Council's contentions, particularly those relating to the adequacy of information concerning the extent of the expansion of activities. This resulted in a number of submissions concerning the proposed extent of conditions for the 'vacant' land. 11Insofar as the applicant generally accepts the overall intent of council's Condition 2, its preferred modifications are contained in exhibits F and G. These modifications propose: * The expanded use of the site to allow warm up and training sessions, together with circus activities that could accommodate up to 200 people. At no time would the capacity exceed that approved for the overall use of the circus activities * Music to be allowed subject of noise control conditions limiting noise to not exceed + 5dBA above ambient levels at the nearest residence. Also no music is to be played after10 pm weekdays and after midnight Fridays and Saturdays * Tents as approved are allowed subject to the provisions of Schedule 2 of SEPP (Temporary Structures) 12After consideration of options by the parties, there was no agreement and the s 34 was terminated. Considering the unresolved matters, the parties agreed that the determination of the matter should take place on the basis that a preliminary determination be made on the question on "whether the modified application relates to substantially the same development as approved."