Lismore Venture Pty Ltd v Byron Shire Council [2020] NSWLEC 1150

Land and Environment Court New South Wales

Medium Neutral Citation: Lismore Venture Pty Ltd v Byron Shire Council [2020] NSWLEC 1150 Hearing dates: Conciliation conference on 27 March 2020 Date of orders: 31 March 2020 Decision date: 31 March 2020 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: APPEAL – development appeal – multi-dwelling housing – conciliation conference – agreement reached Legislation Cited: Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Lismore Venture Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent)

Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/153305 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal concerning a development application for the construction of multi-dwelling housing at 23 Lismore Road, Bangalow. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 27 March 2020, by telephone. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application reduce the number of dwellings from 17 to 15, achieved by dividing a building that previously had a length of 32m along the rear boundary into separate buildings, which allows for a presentation at the rear that is more appropriate for the site and consistent with the character of the locality. The amendments also added additional parking and privacy measures, and made changes to improve the private open space for the studio apartments. The amended development application complies with the development standards for height and floor space ratio. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The site is zoned R2 Low Density Residential, pursuant to the Byron Local Environmental Plan 2014 ("BLEP 2014"), in which multi-dwelling houses are permitted with consent. * The proposed development complies with the applicable development standards in the BLEP 2014 for height and floor space ratio. * The proposed development complies with the applicable development standards in the State Environmental Planning Policy (Affordable Rental Housing) 2009 ("SEPP ARH"). * Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 16A of the SEPP ARH. The parties agree that, as a result of amendments to the plans, the design is compatible with the local character. * Consideration has been given to the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development, as required by cl 15 of the SEPP ARH. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. The parties agree that contaminants have been removed and the site can be made suitable for the development, and a condition of consent has been imposed with respect to any unexpected findings. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The Applicant is granted leave to amend Development Application No. 10.2018.161.1 and to rely on the following amended plans and documents: DWG NO. DESCRIPTION PREPARED BY REV DATE D-S-01 Site Plan The Kollective C 21/02/2020 D-P-01 Lower Floor Plan The Kollective C 21/02/2020 D-P-02 Upper Floor Plan The Kollective C 21/02/2020 D-P-03 Solar Access Plan The Kollective B 10/12/2019 D-P-04 Roof Plan The Kollective B 10/12/2019 D-E-01 Elevations 1 The Kollective C 21/02/2020 D-E-02 Elevations 2 The Kollective C 21/02/2020 D-E-03 Site Sections and External Finishes The Kollective B 10/12/2019 D-E-05 South Perspective View The Kollective B 10/12/2019 D-E-06 Perspective View Terraces and Driveway / North Elevation – Terraces The Kollective B 10/12/2019 D-D-01 Detailed Plan – Typical Studio The Kollective B 10/12/2019 D-D-02 Detailed Plan – Typical Row House The Kollective B 10/12/2019 D-D-03 Detailed Plan – Row House – AS4299 Adaptable The Kollective B 10/12/2019 D-D-04 Detailed Plan – Terraces Lower The Kollective B 10/12/2019 D-D-05 Detailed Plan – Terraces Upper The Kollective B 10/12/2019 D-S-03 Site Plan – Landscaped Area The Kollective B 10/12/2019 D-S-05 Shadow Diagram 3pm The Kollective B 10/12/2019 D-S-05A Shadow Diagram 9am The Kollective B 10/12/2019 D-S-05B Shadow Diagram 12 Noon The Kollective B 10/12/2019 D-S-05D Shadow Diagram 10am The Kollective B 10/12/2019 D-S-08 Stormwater Concept Plan The Kollective A 17/09/2019 DOCUMENT DESCRIPTION PREPARED BY DATED Assessment of stormwater requirements for proposed development at 23 Lismore Road, Bangalow Lucena Civil & Structural Engineers 15/07/2019