Hultgren v Byron Shire Council [2013] NSWLEC 1163

Land and Environment Court New South Wales

Medium Neutral Citation: Hultgren v Byron Shire Council [2013] NSWLEC 1163 Hearing dates: 30 July 2013 Decision date: 28 August 2013 Jurisdiction: Class 1 Before: Pearson C Decision: See paragraph [95] Catchwords: DEVELOPMENT APPLICATION - Place of Assembly/Recreation Facility - Amendment of hours of operation and permitted numbers - Easement for additional parking - Temporary lighting - Developer contributions Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Water Management Act 2000 Water Management (General) Regulation 2011 Byron Local Environmental Plan 1988 Cases Cited: Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Category: Principal judgment Parties: Richard and Gayle Hultgren (Applicants) Byron Shire Council (Respondent) Representation: Mr M Young, McCartney Young Lawyers (Applicants) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 10245 of 2013

Judgment 1This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by the respondent Council of consent to Development Application DA 10.2012.583 relating to 13-17 Centennial Circuit Byron Bay (the site). 2The site is located in the Byron Bay Arts and Industry Estate to the west of Byron Bay town centre, accessed from Ewingsdale Road by Bayshore Drive. The subject site is Lot 16 DP 812667, and there is an easement created over the adjoining lot on the eastern side, Lot 17 DP 812667, in favour of Lot 16, allowing egress from Lot 16 in the event of a fire emergency. There is parking for 16 vehicles at the front of the site. 3The site operates as the Byron Entertainment Centre (BEC), including trapeze and circus activities and training, occasional special events, and larger events, with an ancillary restaurant. The background to the development consent granted in 2005 authorising those uses, and subsequent modifications, and a further development consent granted in 2009, is outlined below. 4The development application the subject of these proceedings sought consent for changes to the permitted hours and frequency, and an increase of patron numbers, for certain events, and a change to the permitted operation of the restaurant. 5After the Class 1 appeal was lodged, the Council resolved on 9 May 2013 to approve the development application subject to conditions. The Statement of Facts and Contentions filed by the applicants on 3 June 2013 (exhibit A) indicated that the applicants appeal against the description of the development in the Council's Notice of Determination and conditions 2(b), 3, 4, 5, 6, 7, 10, 11, 12, 13, 19 and 22. In its Amended Statement of Facts and Contentions in Reply filed on 7 June 2013 (exhibit 1) the Council agreed that some of the conditions could be amended. 6The matter commenced on site as a conciliation conference under s 34AA of the Land and Environment Court Act 1979, and during the course of discussions between the parties agreement was reached on some of the conditions in dispute. The parties did not reach agreement on all matters and the conciliation conference was terminated, and the matter proceeded to a hearing. 7The remaining issues between the parties are whether the application to permit 4 overnight events per annum, being events for up to 900 people between the hours of 5.00pm and 6.00am, should be approved; whether the description of the development consent granted in 2005 should be amended; whether condition 10, which requires the applicant to provide temporary external lighting for night time events exceeding 400 people, should be deleted; whether condition 11 requiring registration of a s 88B Instrument naming Council as a party whose approval is required for removal of the easement for car parking should be deleted; whether condition 12 requiring a certificate of compliance under s 307 of the Water Management Act 2000 should be deleted; and whether condition 13 requiring payment of contributions under s 94 of the Act should be deleted.