Land and Environment Court New South Wales Medium Neutral Citation: Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel and ors [2017] NSWLEC 1278 Hearing dates: 15-17 May 2017 Date of orders: 02 June 2017 Decision date: 02 June 2017 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. Development Consent is granted to Development Application No. 10.2016.77.1 for construction of a road and associated works subject to the conditions of consent at Annexure 'A'. 2. The appeal is otherwise dismissed. 3. The exhibits, other than exhibit A, are returned. Catchwords: DEVELOPMENT APPLICATION: bypass road through wetland area; objector appeal against grant of consent for designated development; impacts in the locality. Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Threatened Species Conservation Act 1995 Native Vegetation Act 2003 Cases Cited: Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel [2017] NSWLEC 51 Category: Principal judgment Parties: Butler Street Community Network Incorporated (Applicant) Northern Region Joint Regional Planning Panel (First Respondent) GHD Pty Ltd (Second Respondent) Byron Shire Council (Third Respondent) Representation: Counsel: Mr Paul Jones self-represented (Applicant) Mr A Galasso SC (Third Respondent) Solicitors: HWL Ebsworth Lawyers (Third Respondent) File Number(s): 2016/227775 Judgment 1. COMMISSIONER: This is an objector appeal brought pursuant to s 98(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') by the Butler Street Community Network Incorporated ('the applicant') against the Northern Region Joint Regional Planning Panel ('JRPP'), GHD Pty Ltd ('GHD') and Byron Shire Council ('the Council'). The appeal is against the grant of consent by the JRPP on 22 June 2016 for Development Application No 10.2016.77.1 lodged by GHD on behalf of the Council, for the construction of a bypass road and associated works ('the Byron Bay Bypass'). Issues 1. The applicant's contentions can be summarised as: * The likely noise impacts from the development are unacceptable, as those noise impacts cannot be effectively mitigated. * The proposal will have unacceptable heritage impacts. * The social impacts, as a result of the noise impacts and noise mitigation measures, are unacceptable. The proposal will result in unacceptable social impacts within the local community. * The proposal is not suitable and not in the public interest, for reasons including its impact on the wetland areas and other areas of the natural environment. Background, the proposal before the Court and the planning framework 1. The Byron Bay Bypass is to bypass the Byron Bay town centre. The proposed route runs north-south on the western side of the railway, to the west of the town centre. The Byron Bay Bypass is expected to divert 3200 to 4400 vehicles per day from passing through the town centre (p 7, exhibit 7) so that the bypass road operates as a 'collector road'. A portion of the Byron Bay Bypass is to pass through wetlands ('SEPP 14 Wetlands') governed by the State Environmental Planning Policy No 14 – Coastal Wetlands (NSW) ('SEPP 14'). 2. The development consent granted by the JRPP was for the upgrade of existing and construction of new road in Butler Street (including the road reserve southern extension), Browning Street, part of the Casino-Murwillumbah Railway Line corridor, Shirley Street, Lawson Street, Somerset Street, Burns Street, Wentworth Street and Jonson Street, including upgrade of the existing roundabout at the intersection of Shirley Street, Lawson Street and Butler Street, construction of three new roundabouts, two new culverts and upgrade of an existing culvert. 3. The development consent granted by the JRPP is in fact wider than the proposal now before the Court because the only aspect of the development that requires development consent under Part 4 of the EPA Act is the portion of the Byron Bay Bypass that traverses the SEPP 14 Wetlands ('the proposal'). 4. Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel [2017] NSWLEC 51 is a decision by Justice Robson on a motion brought by the applicant seeking, in relation to this appeal, that the proceedings be dismissed as the Court has no jurisdiction to determine the development application that is before it. His Honour determined the following: * The validity of the consent granted by the JRPP is not an issue before the Court in the substantive hearing, as the Court's task in Class 1 proceedings is to re-determine the development application, rather than review the consent, at [40]; * To the extent the JRPP did in fact grant consent for those parts of the Development Application that do not require consent, this consent is merely superfluous and therefore ineffectual, at [41]; * The consent in respect of the SEPP 14 Wetlands portion of the development must necessarily endure, at [43]; * The Court has the power to entertain the Development Application for the part of the development on SEPP 14 Wetlands and the Court should exercise its discretion under s 80(4) of the EPA Act to do so; at [39]. 1. State Environmental Planning Policy (Infrastructure) 2007 ("SEPP Infrastructure") permits development for the purpose of a road or road infrastructure facilities to be carried out by or on behalf of a public authority without consent on any land, at cl 94(1). This is not an absolute power, as SEPP 14 prevails over SEPP Infrastructure to the extent of an inconsistency, at cl 8(2)(a). 2. Land to which SEPP 14 applies requires the consent of the council to clear that land, drain that land or fill that land, at cl 7(1). The proposal is designated development, pursuant to cl 7(3) of SEPP 14 and so the appeal remains within power. 3. Approval under Part 5 of the EPA Act will be required for the remaining portion of the road not located within the SEPP 14 Wetland. Approval under Part 5 of the EPA Act for the road outside of the SEPP 14 Wetland will be a matter for the determining authority. The determining authority will be required, under s 111 of the EPA Act, 'Duty to consider environmental impact', to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity". Map prepared by GHD and included in the Statement of Facts and Contentions in Reply (tab 1, exhibit 1) showing the SEPP 14 Wetlands hatched in blue and the proposed road outlined in red. Butler Street is to the north of the SEPP 14 Wetlands. 1. The Byron Bay Railway Station and yard group are listed on the State Heritage Register (SHR 01107) with the following statement of significance and map: Byron Bay station group is a coherent group of railway buildings with good detailing and containing a number of unusual features including the round water tank on a brick base and the railway hotel attached to the station building. The station building is an excellent example of the timber standard roadside type and the location of the station and residence in the main street of Byron bay contribute in a significant way to the streetscape of the town. The water tank is one of two tanks of this design known to survive and is therefore of high significance. 1. 60 and 62 Butler Street are both listed in Schedule 5 Part 1 of Byron Shire Local Environment Plan 2014 (LEP 2014) as items of heritage (item numbers 65 and 66). The Railway Station and cottage are also listed as items of heritage (item numbers 77 and 78). The Burns Street Conservation Area (Burns Street CA) is shown on the map as C002 (Heritage Map Sheet HER_003CC LEP 2014) (extract below) and listed in Schedule 5 Part 2 of LEP 2014. The eastern boundary of the Burns Street CA is along Butler Street and includes the heritage items and dwellings on the western side of Butler Street. 1. Section 78(8) of the EPA Act is in the following terms: A development application (other than an application in respect of State significant development) must be accompanied by: (a) if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or (b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995. Note. Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats. 1. The proposal includes a Biobanking Statement (exhibit 5) pursuant to Part 7A (the biobanking scheme) of the Threatened Species Conservation Act 1995 (TSC Act), issued by the Office of Environment and Heritage (OEH) and dated 21 December 2015. The Biobanking Statement means that the requirements of the TSC Act will be satisfied and the development is not likely to significantly affect any threatened species, population or ecological community, or its habitat. Section 127ZO of the TSC Act is a deeming provision, in the following terms: 127ZO Effect of issue of biobanking statement—development requiring development consent (1) If development described in a biobanking statement supplied to a consent authority is development for which consent is required under Part 4 of the Planning Act, the development is taken, for the purposes of that Part, to be development that is not likely to significantly affect any threatened species, population or ecological community under this Act, or its habitat. (5) Despite section 79C of the Planning Act, if a biobanking statement has been issued in respect of a development, a consent authority is not required to take into consideration the likely impact of the development on biodiversity values. 1. There is a relatively small area of approximately 1160sqm of the route of the proposal not included in the area to which the bio-banking statement applies. The zoning map under LEP 2014 (Map LZN_003CC LEP 2014) zones the site of the proposal as a 'Deferred Matter', shown in the extract below, making it necessary to resort to the zoning map in the Byron Local Environment Plan 1988 (LEP 1988). 1. LEP 1988 zoning map shows the proposed road reserve zoned 9A in the extract below: 1. The Biobanking Statement issued by OEH applies to the area of the planned road, zoned 9A Proposed Road Reserve Zone in LEP 1988, shown on the above map, which passes through the SEPP 14 Wetland. The area required for a roundabout, at the southern end of the proposed road, is located in the area of the SEPP 14 Wetland zoned 7A Wetlands Zone under LEP 1988. The portion of the road within the 7A zone could not be the subject of the Biobanking Statement and required consent under the Native Vegetation Act 2003 (NV Act). 2. Condition 3 of the SEPP 14 Coastal Wetlands Concurrence Conditions of Consent for DA No 10.2016.77.1 (exhibit 17) includes a requirement for biobanking credits to be retired in relation to the area within the SEPP 14 Wetlands and not the subject of the Biobanking Statement issued by OEH, as follows: The biodiversity loss from within that part of SEPP 14 Coastal Wetland number 104 not subject to BioBanking Statement 19 is to be quantified using the BioBanking Credit Calculator V4.0 and the BioBanking Assessment Methodology. Once quantified, the number of credits required to offset this additional loss of biodiversity is to be retired along with the credit requirement of BioBanking Statement 19. Public submissions 1. A large group of resident objectors attended the on-site part of the hearing and 10 gave evidence. The Court in the company of the parties viewed the SEPP 14 Wetlands area from the southern end of Butler Street and viewed the railway corridor, the houses fronting Butler Street and the Glen Villa Resort. The residents' objections to the proposal can be summarised as: * The increased traffic on Butler Street will result in unacceptable amenity impacts on the residents of Butler Street; * The proposed works to the heritage listed dwellings to ameliorate the noise impacts of the increased traffic on Butler Street will have a detrimental impact on the heritage significance of the those dwellings; * The proposal will have an unacceptable impact on the use of the Butler Street Reserve on the western side of Butler Street as it is used for the Byron Bay Markets; * The increase in traffic along Butler Street will make the street unsafe for pedestrians; and * The proposal will impact on places of Indigenous heritage within the wetlands. 1. Impact on Indigenous heritage sites was not raised as a contention in the appeal. The concern raised by objectors in relation to Indigenous heritage is addressed by the Aboriginal Cultural Heritage Assessment carried out as part of the Environmental Impact Statement (EIS) (exhibit 5) and condition 29 (exhibit 17), as follows: 29) Aboriginal Cultural Heritage Any Aboriginal objects identified during approved works must be processed through the protocol and procedures to be detailed in the Construction Environmental Management Plan and in accordance with the provisions of Part 6 of the National Parks and Wildlife Act 1974. Expert evidence 1. The applicant relied on the expert evidence of Mr Stephen Pugh (acoustic), Mr Robert Moore (heritage), Dr Judith Stubbs (social planning) and Mr David McCann (ecology). 2. The Council relied on the expert evidence of Mr Paul Grech (planning), Dr Renzo Tonin (acoustic), Mr Robert Staas (heritage), Professor Roberta Ryan (social planning) and Mr Daniel Williams (ecology). Consideration Acoustic 1. The applicant contends that the noise impacts of the Byron Bay Bypass cannot be effectively mitigated. The applicant's particulars for this contention are either generally factual about the construction and location of the dwellings along Butler Street or are more appropriately characterised as contention regarding the impact of the proposed mitigation measures on the heritage significance of the heritage listed dwellings. The applicant's actual contention regarding noise is not in fact that it cannot be mitigated, but that those mitigation measures are unreasonable because the increased noise impact arising from the increased traffic along Butler Street can only be mitigated internally by enhancing the acoustic insulation of each dwelling. 2. The applicant contends that in order to achieve the overall internal noise reduction rates predicted by Dr Tonin, the occupants of the dwellings will have to keep the windows of their dwellings facing the road closed and that the use of their front gardens will be restricted. 3. It is common ground between the parties that there is an insufficient separation distance between the property boundaries to Butler Street and the Byron Bay Bypass to permit the construction of a road-side noise barrier, as is proposed between the Bypass and the Glen Villa Resort. According to Dr Tonin, the most feasible option for mitigating the traffic noise for the dwellings facing Butler Street is to treat the facades of those dwellings. 4. The treatment of individual dwellings will, according to Dr Tonin, result in an overall noise reduction of 4-5dB(A). The treatment is unique for each property, but generally consists of wall cavity, floor and ceiling insulation, the use of laminated glass or double glazing, the use of solid core external door with acoustic seals, fresh-air ventilation and 1.8m boundary fences with a motorised automatic sliding driveway entrance gate. The experts agreed that it is more difficult to achieve satisfactory noise level reductions by retrofitting older timber framed dwellings than it is for masonry construction, however, Mr Pugh is of the view that incorporating improvements to glazing, doors, wall and ceiling insulation and underfloor treatment of older timber framed dwellings can achieve a noise reduction with windows closed of 20dBA and for masonry dwellings 35dBA. 5. The acoustic experts are in general agreement regarding the methodology for the detailed prediction of noise levels and the goal, on the basis of the RMS Noise Criteria Guideline (RMS NCG), of achieve noise levels equivalent to 50 LAeq during the day and 45 LAeq at night. 6. Dr Tonin noted that front and side fences have an important and significant effect in reducing the noise level. 7. I accept Mr Pugh's evidence that the proposed noise barrier adjacent to the Glen Villa Resort will achieve the noise level goal in the RMS NCG in the front yard of most of the dwellings at the Glen Villa Resort. 8. On the basis of the evidence of the acoustic experts, I accept that the predicted increase in noise levels can be effectively mitigated internally for dwellings fronting Butler Street, but that this can only be achieved by carrying out works to increase the acoustic insulation of each individual dwelling and by constructing boundary fences with gated access. Heritage impacts 1. The applicant contends that the proposal will have a detrimental impact on the heritage significance of the heritage items at 60 and 62 Butler Street, as a result of the mitigation measures proposed to reduce the acoustic impact of the proposal. The applicant further contends that the proposal will not complement the existing heritage character and visual setting of the Burns Street CA. 2. The heritage experts disagreed on the acceptability of the proposed acoustic mitigation measures to individual dwellings fronting Butler Street. According to Mr Moore, the Butler Street dwellings will be hidden behind fences and as a consequence, the existing predominant character of the CA will be changed as a result of the Byron Bay Bypass. In Mr Moore's opinion, the proposed glass fence inside of the existing masonry fence of 62 Butler Street will look ridiculous. 3. According to Mr Staas, only the two individually listed houses, 60 and 62 Butler Street, within the Burns Street CA have a degree of heritage significance and the rest of the dwellings within the Burns Street CA are merely representative of coastal town residential development that collective have some, low level, representative heritage significance. In his view, the works proposed in the 'Preliminary specification for noise mitigation works' (exhibit 10) are acceptable in terms of the impact of those works on the heritage significance of the two heritage listed houses, as appropriate mitigation treatment, and the design of boundary fencing will maintain the current contribution made by them to an understanding of the evolution of the town and character of the street in this location. 4. I accept Mr Staas' evidence that the works proposed to the two heritage listed dwellings can be designed and carried out in such a way as to be acceptable in terms of the impact of those works on the heritage significance of the dwellings. Changes to heritage listed items can be appropriately managed so as to retain heritage significance. 5. According to Mr Staas, locating the bypass road on the railway corridor instead of joining the existing Butler Street would be a worse outcome in terms of the impact on the heritage significance of the State listed Railway Station and yard group heritage item; as such a proposal would have a major impact on the setting of those heritage items. Mr Moore had not yet reached an opinion on the impact of any alternative route using the railway corridor on the State listed Railway Station and yard group heritage item. I accept Mr Staas' evidence that the alternative route though the centre of the Byron Bay Railway Station and yard precinct would potentially have a significant impact on the setting of the State listed heritage item. 6. The heritage experts agreed that the landmark value of the Water Tower will remain following the construction of the Byron Bay Bypass and I accept their agreement. 7. I prefer and accept Mr Staas' view that the Byron Bay Bypass road will have some impact on the Burns Street CA, but as the road is on the edge of the CA it will have less impact than if it passed through the CA and because the Byron Bay Bypass is located in the same position as Butler Street, the level of impact the Bypass will have on the heritage significance of the Burns Street CA will not be so detrimental as to undermine the collective, low level heritage significance of the Burns Street CA as representative of coastal town residential development. Social impacts 1. The applicant contends that the Byron Bay Bypass will give rise to negative social impacts, including unacceptable negative impacts on the local community, due to a loss of parking and pedestrian access, a reduction in the social and economic benefits of the Byron Bay Markets held on the Butler Street Reserve due to loss of parking and loss of amenity; increased danger to vulnerable road users and a loss of amenity in the neighbourhood. 2. The social planning experts agreed that the 50km/hr speed limit on the Byron Bay Bypass will reduce the walkability score in the immediate locality; however Professor Ryan noted that the decreased traffic within the town centre will improve the overall walkability of the area. The experts agreed that increased road noise in Butler Street will have consequential social impacts for the residents of Butler Street. 3. I accept Dr Stubbs' evidence that there will be deterioration in the amenity currently enjoyed by the occupants of dwellings fronting Butler Street and that the changes to the physical environment of Butler Street will require the residents to adjust to new or altered pedestrian routes, to supervising children in the public domain and to changes in vehicular access to the properties facing Butler Street. 4. Dr Stubbs notes that no cost-benefit analysis has been carried out and there has been no proper quantification of benefits of the Byron Bay Bypass undertaken. According to Professor Ryan, the overall benefits of the Byron Bay Bypass to the Byron Bay community outweigh the social impacts on the Butler Street community. 5. No evidence has been adduced by the applicant to demonstrate why the food markets cannot continue to operate following the construction of the Byron Bay Bypass. 6. I accept the agreed evidence of the social planning experts and I understand that the Byron Bay Bypass will result in negative amenity impacts for the residents in dwellings fronting Butler Street, caused by the changes to the locality, including increased traffic, increased road noise and changes to the way in which they come and go to their homes and use their homes. These undesirable impacts must be weighed against the fact that the Byron Bay Bypass has been planned since at least the making of LEP 1988 and the benefits to the community as a whole in managing the traffic through the Byron Bay town centre. Ecology 1. The applicant contends that the proposal will incur substantial adverse impacts on wetland areas and other areas of the natural environment. 2. The issue of a Biobanking Statement means there is not and cannot be pursuant to the legislative scheme any effect on the environment the subject of the Biobanking Statement. 3. The residual component was assessed by GHD in accordance with the Biobanking Assessment Methodology (exhibit 5, EIS appendix J) and included a 'seven part test' to determine whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats and whether a Species Impact Statement is required, pursuant to s 5A of the EPA Act. The conclusion of the assessment is that the proposal is unlikely to have a significant effect on threatened species, populations or ecological communities, or their habitats. Notwithstanding this conclusion, the JRPP imposed a condition of consent for a requirement for biobanking credits to be retired in relation to the area within the SEPP 14 Wetlands and not the subject of the Biobanking Statement issued by OEH. I am satisfied that the assessment together with the imposition of condition 3 on the consent addresses the issue of biodiversity loss for the residual component of the proposal. The applicant's contention regarding ecology is not made out by the evidence. Findings 1. It is the applicant's case, following Justice Robson's decision, that in determining the appeal, I should consider the likely impacts on the Butler Street community because they arise as a consequence of an approval granted for the proposal, being the portion of the Byron Bay Bypass that is to pass through the SEPP 14 Wetlands. In determining this appeal, I have taken the applicant's case at its highest and considered the likely impacts of the proposal in the locality, including the impacts on the Butler Street community. 2. I accept and acknowledge that the intensification of the use of Butler Street, as a consequence of the creation of a bypass road to divert traffic from the Byron Bay town centre, will have necessary and undesirable impacts on the Butler Street community, particularly those residents that front Butler Street, and I understand and appreciate their distress in relation to the changes proposed to Butler Street. 3. The majority of the applicant's case focuses on the impacts arising from the increased traffic along Butler Street, which is the portion of the Byron Bay Bypass that will require approval by the determining authority under Part 5 of the EPA Act. Approval under Part 5 for the road outside of the SEPP 14 Wetland will be a matter for the determining authority. The determining authority will be required, under s 111 of the EPA Act, 'Duty to consider environmental impact', to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity". The conditions of consent sought by the applicant in this appeal are relevant to the determination under Part 5 of the EPA Act. 4. The applicant's case also focused on their preference for an alternative route for the Byron Bay Bypass and the argument that feasible alternatives to the Byron Bay Bypass should be wide ranging. I accept Mr Grech's evidence that alternative options were considered in the early stages of the project and the evidence tendered that demonstrates a number of options have been considered for the railway corridor. I have also had regard to the Byron Bay Bypass justification statement which is included in the EIS (exhibit 5). An alternative route may well be an arguable position; however, I must deal with the application at hand. Merits review of a development application is not about searching for an alternative to justify refusing the proposal. 5. The Byron Bay Bypass has been planned since at least the making of LEP 1988. Nothing has been raised in the appeal by the applicant that warrants the refusal of the development application for the portion of the Byron Bay Bypass through the SEPP 14 Wetlands. On the basis of all of the evidence before me, I am satisfied that it is appropriate to grant consent to the proposal. Orders 1. The orders of the Court are: 1. Development Consent is granted to Development Application No. 10.2016.77.1 for construction of a road and associated works subject to the conditions of consent at Annexure 'A'. 2. The appeal is otherwise dismissed. 3. The exhibits, other than exhibit A, are returned. ____________ Susan O'Neill Commissioner of the Court 227775.16 O'Neill (C) (319 KB, pdf) ********** 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: 03 May 2018