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." Submissions 13Proceeding on this basis, each party made submissions. According to Mr Seton, the applicant's proposed modification does not relate to substantially the same development as approved, in accordance with the provisions of s 96(2)(a) of the Environmental Planning and Assessment Act. In support of this submission he refers to the matter of Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 wherein Bignold J stated: 29. His Honour's adoption of the decision of Stein J in Vacik Pty Ltd v Penrith City Council (unreported 24 February 1992) as to the meaning of "substantially the same development" needs to be further noted. 30. In Vacik, Stein J had said: Turning to the issue of s.102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion substantially when used in the section means essentially or materially or having the same essence... 39. In Vacik, the development consent granted for the extraction of sand and shale had imposed conditions requiring site rehabilitation at the end of the extraction process. The modification application proposed that the rehabilitated landform be significantly different and that the land fill operation involve the deposit of non-putrescible waste. 40. Stein J (at p 4) compared the proposed modification with the existing consent in the following passage: "In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. A significant difference is one of sequencing. The existing consent requires rehabilitation at the end of the excavation of material. By contrast the amendment proposes progressive rehabilitation over time and while the excavation of clay/shale continues. This has obvious implications for environmental impacts." 41. Stein J (at p 5) warned against an overgeneralised description or analysis of the relevant developments (to be compared) in the following observation: "In approaching the s.102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s.102." 14Applying this authority to the subject matter, Mr Seton submits that the original consent limited the use of the vacant land to "warm up sessions for artists during approved concerts and other activities related to the Byron Entertainment Centre." 15Accordingly, in considering the extent of the usage of the vacant land, I note that when the development consent was originally granted for the use of the vacant land, it was based on the applicant's description of the use for an "expansion of activity area". However the accompanying SEE stated that the vacant land use was for: * The storage of equipment (shipping containers in NW of site) * Warm up training area for trapeze, fire stick twirling, unicycle and juggling. 16Ms Hultgren submits that the vacant land is being mainly used for these aforementioned uses but some expansion is required. This would be within the overall cap for people on the site but the location of some of the activities would be shifted outdoors to the vacant land. On occasions, this could result in larger performances being undertaken for up to 200 people. 17Ms Hultgren submits that this is consistent with the council planning officer's assessment that referred to circus uses for the land. However, it seems this assessment was nevertheless qualified by the subsequent amended condition, which maintained the subordinate use of this vacant land. I do not consider this reference to the 'undefined' circus elements elevates its use to the intensity now proposed by the applicant. 18Having considered the submissions and undertaken a view, it is apparent to me that the intent of the original consent for the vacant land was to allow for its ancillary usage in association with the approved circus uses on the adjacent BEC site, which is subject to a separate approval. 19When approval was granted to the subject consent being modified, it was to allow for a lower scale of activity in the form of a warm up area for artists prior to their performances. This would probably include opportunities for the artist to undertake some training on the identified facilities on the vacant land. That is, the use of the vacant land was to remain subsidiary to the adjoining building uses. 20However, from my understanding of the applicant's intended uses of the vacant land, it is to be an alternative or supplementary site to share and expand the level of the 'circus' activities over the entire site area. In this regard, I note that the applicant did not define the extent of the circus activities. 21Accordingly, I am persuaded to accept Mr Seton's submissions that the applicant's modification does not relate substantially to the same development as approved because: * There is likely to be a significant increase in the intensity of use of the vacant land in terms of the performance of the various activities with much greater public attendances. * The applicant has not provided compelling evidence as to the extent, and what the 'circus' activities on the vacant land would involve in terms of any ancillary categories. In the context of the subject application, it seems to me that the undertaking of the actual circus activities on a regular basis would likely result in a materially different outcome to the current consent. * The clarification contained in exhibit G that up to 200 people could experience the circus performances and other events on the subject land would, in my assessment, result in a significant intensification of the use of this land, over and above its original approval. * The insistence by the applicant to have some form of music played for these outdoor activities is a fundamental difference from the initial conditions of consent, which did not allow music on the site. Taking into account the context of the site where the vacant land is substantially surrounded on three sides by two-storey type walls, which presents as a kind of amphitheatre, I consider it appropriate and reasonable that a proper assessment of the noise issue is undertaken prior to granting consent to this element. I do consider it appropriate to simply cover this by a performance condition. 22In summary then, my assessment is that the modification sought by the applicant does not satisfy the requirements for the application to relate to substantially the same development as originally approved. It would result in a significant change and intensification in the use of the vacant land by way of transferring and supplementing some of the main circus activities to this land, which is inconsistent with its approved ancillary role. Consequently, I consider the application does not satisfy the s 96(2)(a) provisions for approval. Court orders 23The Court orders that: (1)The appeal is dismissed and the determination of the Modification Application No 10.2006.648.3 made on 6 September 2012 by the Respondent is confirmed. (2)The exhibits be returned except for 1, 3, 4 (Tab 16) and G. R Hussey 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. Decision last updated: 19 July 2012