Byron Hotel Limited v Byron Shire Council

Land and Environment Court (NSW)|2003-10-22|Before: Mr P

CITATION : Byron Hotel Limited v Byron Shire Council [2003] NSWLEC 296 APPLICANT: Byron Hotel Limited PARTIES : RESPONDENT: Byron Shire Council FILE NUMBER(S) : 10989 of 2002; 20914 of 2003 CORAM: Moore C KEY ISSUES: Development Application :- Bulk and scale Traffic LEGISLATION CITED: State Environmental Planning Policy No . 1 Local Government Act 1993 - s 176 - 178 CASES CITED: Codlea Pty Limited v Byron Shire Council [1999] NSWCA 399 DATES OF HEARING: 9, 15, 17 and 22 October 2003 EX TEMPORE JUDGMENT DATE : 10/22/2003

APPLICANT: Mr C Drury, solicitor SOLICITORS: Phillips Fox

LEGAL REPRESENTATIVES: RESPONDENT: Mr P Clay, barrister SOLICITORS: Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10989 of 2002 and 20914 of 2003

22 October 2003 Byron Hotel Limited Applicant v Byron Shire Council Respondent Judgment

The two matters that are presently before the Court are matters 10989 of 2002 and 20914 of 2003.
Matter 20914 of 2003 will effectively disappear (by dismissal by consent of the parties) as a consequence of the proposed consent orders put for the Court's approval in the class 1 proceedings.
The class 1 matter originally came before the Court as a contest concerning two conditions relating to a proposed second stage development at premises to the rear of the Great Northern Hotel between Jonson Street and Fletcher Street, Byron Bay, the second stage being the intermediate lands between the hotel and the stage 1 development which has a frontage to Fletcher Street.
There are a number of objections that went beyond the matters that were the areas of residual dispute between the council and the applicant. They might be summarised, through both the oral evidence of Mrs Conlan on behalf of Beacon Inc and Mr Ian Hartley, who gave evidence this morning by telephone, as being objections to the bulk and scale of the proposed built form; the possible vehicle and pedestrian impacts of the development and the appropriateness or otherwise of both the usage of the grey water reuse scheme and (pressed by Beacon) the inadequacy of the s 94 contributions plan, against which the contributions for this proposal were assessed. Beacon and Mr Hartley also raised the broader philosophic issue of the commercial planning framework for the central business district of Byron Bay.
With respect to what I would describe as the three broad philosophic issues as opposed to specific issues relating to the proposal for the site, I can simply observe that the philosophic issue of whether or not there ought be three-storey development in the CBD at Byron Bay and the general planning context that that would create is a matter for the council to consider in a policy context - it is not a matter that is appropriate for me to determine in these proceedings. The bulk and scale issues, to which I will return shortly, are specific to these proceedings, and relate to the proposed built form on the proposed site, in the approved surrounding context, which includes the prior approval for the stage 1 development fronting Fletcher Street.
Secondly, there is the proposition that was advanced by Mrs Conlan that the recycling and reuse of grey water ought to be used for what one might describe as a general public purpose environmental credit rather to sustain future development. Whilst it might well be a philosophic proposition with which I would find some sympathy, particularly given one of my past lives and far greater issues of that nature in the Sydney area with which I had to deal on a regular basis, it is not a matter that it is appropriate for me to deal with in these proceedings, as that is a philosophic policy matter that would require to be dealt with on a Shire and possibly a region-wide basis within the local water supply context. Indeed, in addition, it might well be an issue that was outside my jurisdiction being an appropriate arrangements issue for the purposes of cl 45 of the Byron LEP: see the decision of the Court of Appeal in Codlea Pty Limited v Byron Shire Council [1999] NSWCA 399. In terms of the present proceedings, there is the uncontested expert evidence before me, with which Mrs Conlan does not take issue, that the proposed grey water reuse scheme is technically appropriate and functional.
With respect to the specific matters that arise concerning the site, I did indicate to the parties my desire that they consider and discuss the option of altering the proposed traffic arrangements to require all traffic exiting from Lawson Lane to turn to the left, thus avoiding the possibility of conflicts with southbound traffic in Fletcher Street. During a short adjournment, there have been discussions between the parties on that point. The position has been put to me by Mr Clay, on behalf of the council, is that the council was not satisfied that that was an appropriate treatment, because of what was expected to be the inability of the traffic arrangements to the north of the intersection of Lawson Lane and Fletcher Street to cope with the resulting traffic that would be sent in that direction.
With respect to the issue of bulk and scale of the subject proposal, the model to which the Court has been taken (although not formally in evidence, has been treated as if it were and I propose to have regard to it on that basis) discloses that the proposed built form is broadly consistent with the approved built form to the east and with the existing built form to the west, although there are a number of modest exceedances to the height limits. I was advised from the Bar Table, that these had been the subject of a State Environmental Planning Policy No. 1 objection which had been successful and which is not contested in these proceedings. I am satisfied that the bulk and scale of the proposal are consistent with that of the surrounding development and are not inappropriate in the circumstances.
I note, with respect to pedestrian traffic and vehicle traffic conflicts which are a matter raised by Beacon and by Mr Hartley in his telephone evidence this morning, that there is a 2 m ground level footpath provided along the Lawson Lane frontage of the proposed development, that is on its northern side, which provides an appropriate opportunity for pedestrian conflicts in that area to be resolved. There is nothing before the Court in the present circumstances that would permit it to consider or address what I would understand from the modelling and from the plans to be the residual area of potential pedestrian vehicle conflict, which is that along the northern wall of the Great Northern Hotel - that parcel of land and those premises not being before the Court in these proceedings.
Under all the circumstances, I am satisfied that there is no appropriate basis upon which the Court should decline to enter into the consent orders proposed between the applicant and the council in these proceedings. Therefore, it is my intention, upon submission by the parties to me in Chambers of an agreed set of conditions to accompany the appropriate consent orders, to make the appropriate consent orders upholding the appeal and granting approval for the development.

T Moore Commissioner of the Court Orders made in Chambers on 22 October 2003 in Matter 20914 of 2003 The orders of the Court, by consent, are:

The appeal is dismissed;
Application pursuant to s68 of the Local Government Act 1993 for connection to the sewer of proposed Stages 1 and 2 of a development at 35 - 43 Jonson Street and Byron St, Byron Bay is refused; and
The exhibits may be returned.

Orders made in Chambers on 11 November 2003 in Matter 10989 of 2002 The orders of the Court, by consent, are:

The appeal is upheld;
Development Application 10.2001.648.1 for a commercial development comprising a motel, shop, two refreshment rooms and refurbishment of hotel plumbing at Lot 2 DP 597016, Lot 1 DP587715, Lot A DP343392 and Lots 1, 2 and 3 DP350936 in accordance with plans DWG No. Date Drawing Title 0105-00C June 2003 Cover Sheet 0105-01 Oct 2001 Perspectives - Stage 2 0105-02 Oct 2001 Site plan - State 2 9707-05C(ii) Feb 2003 Level 2 car park 9707 - 06B(ii) Feb 2003 Level 1 car park 9707 - 07C(ii) Feb 2003 Level 1 car park 9707 - 08B(ii) Feb 2003 Level 1 car park 0105-07A May 2002 Ground Floor - Stage 2 0105 -08A May 2002 First Floor - Stage 2 0105 - 09A May 2002 Second Floor - Stage 2 0105 - 10 Oct 2001 Roof Plan - Stage 2 0105-11 Oct 2001 Landscape Plan - First Floor - Stage 2 0105-12 Oct 2001 Landscape plan - Second Floor - Stage 2 0105-13A June 2003 Typical Room layouts 1 0105-14A June 2003 Typical Room layouts 2 0105 - 15 Oct 2001 Elevations - South & East 0105-16A May 2002 Elevations - North & West 0105-17A Oct 2001 Sections - C&D amend 25/2/03 0105-18 Oct 2001 Shadow Diagrams - 21st June 0105 - 19 Oct 2001 Overall site plan - Stages 1 & 2 is determined by the grant of development consent subject to the conditions in Annexure 'A'; and
The exhibits, other than Exhibits B and 8, may be returned. ANNEXURE A

CONDITIONS OF CONSENT BCA Classification:

Motel - Class 3
Shop/Refreshment Room - Class 6
Carpark - Class 7

PARAMETERS OF THIS CONSENT 1 Development is to be in accordance with approved plans The development is to be in accordance with the following plans: DWG No. Date Drawing Title 0105-00C June 2003 Cover Sheet 0105-01 Oct 2001 Perspectives - Stage 2 0105-02 Oct 2001 Site plan - State 2 9707-05C(ii) Feb 2003 Level 2 car park 9707 - 06B(ii) Feb 2003 Level 1 car park 9707 - 07C(ii) Feb 2003 Level 1 car park 9707 - 08B(ii) Feb 2003 Level 1 car park 0105-07A May 2002 Ground Floor - Stage 2 0105 -08A May 2002 First Floor - Stage 2 0105 - 09A May 2002 Second Floor - Stage 2 0105 - 10 Oct 2001 Roof Plan - Stage 2 0105-11 Oct 2001 Landscape Plan - First Floor - Stage 2 0105-12 Oct 2001 Landscape plan - Second Floor - Stage 2 0105-13A June 2003 Typical Room layouts 1 0105-14A June 2003 Typical Room layouts 2 0105 - 15 Oct 2001 Elevations - South & East 0105-16A May 2002 Elevations - North & West 0105-17A Oct 2001 Sections - C&D amend 25/2/03 0105-18 Oct 2001 Shadow Diagrams - June 21st 0105 - 19 Oct 2001 Overall site plan - Stages 1 & 2 as modified by any conditions of this consent. The colours and materials must be in accordance with the approved plans. The approved plans and related documents endorsed with the Council stamp and authorised signature must be kept on site at all times while work is being undertaken. 2 Continuity of Grey water collection, treatment and re-use This consent must operate in conjunction with Development Consent Number 99/0782 for Stage 1. In particular, both Stage 1 and Stage 2 (this consent) must be constructed and operate in conjunction so as to ensure the integrity of the Grey Water collection, treatment and re-use scheme. THE FOLLOWING CONDITIONS ARE TO BE COMPLIED WITH PRIOR TO ISSUE OF A CONSTRUCTION CERTIFICATE FOR BUILDING WORKS.

3 A public positive covenant to the satisfaction of Council's Director of Waste and Water Services shall be created on the titles the subject of this consent pursuant to section 88E of the Conveyancing Act 1919. To this end the registered proprietor(s)of properties so burdened shall covenant with Byron Shire Council and its successors to install and operate a waste water system that is to be installed and operated to the satisfaction of Council's Director of Water and Waste Services. 3A. A plan is to be provided, prepared by a registered surveyor, that identifies proposed easements over the properties the subject of this consent, and associated rights therein, to facilitate the waste water system referred to in condition 3 above. The plan is to be provided to Council prior to the issuing of an occupation certificate, and must be approved by Council's Director of Water and Waste Services prior to occupation. 3B. The easements identified in the plan referred to in 3A above are to be registered on the titles the subject of this consent, following compliance with condition 3A above." 4 Water and Sewerage Section 68 approval required An approval under Section 68 of the Local Government Act 1993 to carry out water supply work and sewerage work must be obtained. 5 Trade Waste Section 68 approval required An approval under Section 68 of the Local Government Act 1993 to discharge trade waste into Council's sewer must be obtained. 6 On-site sewerage management facility Section 68 approval required An approval under Section 68 of the Local Government Act 1993 for on-site effluent disposal must be obtained from Council prior to issue of a Construction Certificate. Such approval must be issued after the date of this consent. The application for Section 68 approval must be accompanied by a report prepared by a suitably qualified professional with demonstrated experience in effluent disposal matters, which addresses the site specific design of effluent disposal in accordance with the requirements of the NSW Local Government Act, and Approvals Regulation and Guidelines approved by the Director General. 7 Stormwater - Section 68 approval required Drainage is to be designed to direct all water to a Council approved drainage system to prevent discharge runoff onto adjoining land. Discharge is to be restricted to the pre-development runoff for a 1 in 10 year storm event with all surplus waters detained on site. This system must be constructed in accordance with Section 3.1.2 "Drainage" of the Building Code of Australia (Housing Provisions) and AS/NZS 3500.3.2 - Stormwater Drainage. All piped drainage lines over adjoining land are to be located within drainage easements. All costs are the responsibility of the proponent. An approval is to be obtained under Section 68 of the Local Government Act 1993 to carry out stormwater drainage work. The engineering plans and specifications are to be designed by a qualified practising Civil Engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers Australia or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. Engineering plans and specifications are to be submitted in triplicate. 8 Flood Evacuation A flood evacuation/contingency plan is to be submitted to Council for approval. The plan shall identify management of the underground carpark and commercial / accommodation components of the development 9 Consent under the Roads Act required Consent from Council must be obtained for works within the road reserve pursuant to Section 138 of the Roads Act 1993. Three (3) copies of engineering construction plans must accompany the application for consent for works within the road reserve. Such plans are to be in accordance with Council's Specification for Engineering Works and are to provide for the following works: - Upgrading Byron Street for the full frontage of the land in accordance with the plans approved in association with this consent which shall include footpath works, kerb and gutter works, street landscaping works and relocation of services as required. - Provision of a management plan for pedestrian traffic around the site during the construction period . Plans shall also include details of drainage and associated works including driveways, parking areas, and the means of access from the road to the proposed development. Site conditions affecting the access, pavement levels in relation to floor levels, and access for people with access disabilities, and should nominate levels in relation to the kerb (or nominated fixed datum) and grades shall be shown on the plans. 10 Engineering plans required for proposed roadworks - Urban road A Construction Management Plan for the construction of all civil works outside the real property boundaries of the proposed development is to be included with the engineering plans and specifications submitted. The Construction Management Plan must schedule all works so that the works are completed in the shortest possible time, with minimal impact on the general community. These roadworks, with associated stormwater drainage structures, are to be designed and constructed in accordance with Council's Development, Design and Construction Manual (as amended). The engineering plans and specifications are to be designed by a qualified practising Civil Engineer. The Civil Engineer is to be a corporate member of the Institution of Engineers Australia or is to be eligible to become a corporate member and have appropriate experience and competence in the related field. Such plans and specifications must be approved as part of the Construction Certificate and the Section 138 approval. 11 Contributions for Water and Sewer Services Contributions for the provision of Water and Sewer services specified in the attached schedule are to be paid to Council. The Certificate of Compliance under Section 306 of the Water Management Act 2000, identifying payment of the contributions, is to be provided to the Principal Certifying Authority. 12 Developer Contributions to be paid Contributions are levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration dated October 2001. The Plan may be viewed during office hours at the Council Offices located at Station Street, Mullumbimby. 13 Bond required to guarantee against damage to public land A bond of $10,000 is to be paid to Council as guarantee against damage to surrounding public land and infrastructure during construction of the proposed development. Evidence is to be provided to Council indicating the pre development condition of the surrounding public land and infrastructure. Such evidence must include photographs. The proponent will be held responsible for any damage to roads, kerb and gutters, footpaths, driveway crossovers etc. The security bonds will be held until any damage to surrounding public land and infrastructure is repaired to the pre development condition. 14 Access and facilities for disabled The application for a Construction Certificate is to include plans and specifications that indicate access and facilities for persons with access disabilities to and within the development in accordance with AS 1428.1 - Design for Access and Mobility and Part D3 of the Building Code of Australia. Such plans and specifications must be approved as part of the Construction Certificate. 15 Long Service Levy to be paid A Long Service Levy must be paid to the Long Service Payments Corporation. This amount payable is based on 0.2% of the cost of the work. These payments may be made at Council's Administration Office, Station Street, Mullumbimby. Cheques are to be made payable to 'Byron Shire Council'. 16 Landscaping plan required The application for a Construction Certificate is to include plans and specifications that indicate the landscaping of the site. Such landscaping plan must incorporate adequate detail to demonstrate compliance with the provisions of Part H of Development Control Plan 2002. Species identified in Part H of Development Control Plan 2002 are to be planted wherever possible. The landscaping plan must indicate: a) proposed location for planted shrubs and trees b) botanical name of shrubs and trees to be planted c) mature height of trees to be planted d) location of grassed and paved areas, and e) location of trees identified for retention in the development application plans. The plan is to be prepared by a suitably qualified landscape architect / architect /ecologist who has appropriate experience and competence in landscaping. Such plans and specifications must be approved as part of the Construction Certificate. 17 Bond for landscaping A bond or bank guarantee of $10,000 to be lodged with Council to ensure the landscaping is carried out in accordance with the approved landscaping plan. Half of the bond or bank guarantee will be refunded after the issuing of a compliance certificate that works have been carried out in accordance with the approved landscaping plan. The remaining bond or bank guarantee will be refunded by Council upon Council's Director of Local Approvals and Compliance Services been satisfied that 95% of the plants have survived a period of 12 months from the issuing of the above compliance certificate. 18 Storage facilities above floor level The application for a Construction Certificate is to include the plans and specifications that indicate secure storage facilities, within the approved proposal, above the flood planning level. Such space is to be equivalent to at least one cubic metre per square metre of floor space that is subject to flooding. Such space must accommodate goods or fittings that are not flood compatible. The nominated space may be used for purposes other than storage when flooding is not expected, provided the space is readily available and can be made secure during the period of flooding. Such plans and specifications must be approved as part of the Construction Certificate. 19 Public liability insurance cover required The developer and/or contractor must produce evidence to the Principal Certifying Authority of public liability insurance cover for a minimum of $10 million. Council is to be nominated as an interested party on the policy. 20 Public Safety Management Plan required A public safety management plan is to be submitted for approval by Council pursuant to Section 138 of the Roads Act 1993. This public safety management plan is to include provision for (but not be limited to): a) a pedestrian barrier, alternative footpaths and ramps as necessary; b) an awning sufficient to prevent any substance from, or in connection with, the work falling into the road reserve; c) lighting of the alternative footpath between sunset and sunrise; d) the loading and unloading of building materials; e) parking space for tradesman's vehicles, where such vehicles must be located near the site due to tools and equipment contain within the vehicle; f) Removal of any such hoarding, fence or awning as soon as the particular work has been completed.

21 Garbage store area to be provided The application for a Construction Certificate is to include plans and specifications that indicate the proposed garbage store area. The proposed garbage store area is to be designed and constructed in accordance with the requirements of Section C7.8 of the Byron Shire Council Development Control Plan 2002. The enclosure must incorporate a concrete base with enclosure of suitable materials to provide adequate site and top screening and visual integration with the buildings and landscape treatment. Such plans and specifications must be approved as part of the Construction Certificate. THE FOLLOWING CONDITIONS ARE TO BE COMPLIED WITH PRIOR TO ANY BUILDING OR CONSTRUCTION WORKS COMMENCING. 22 Public Safety Management Plan The approved public safety management plan is to be implemented. 23 Toilet facilities Toilet facilities are to be provided, at or in the vicinity of the work site at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided must be a standard flushing toilet connected to a public sewer. 24 Plumbing Permit required A Plumbing Permit is to be obtained in accordance with the Local Government Act 1993 and the NSW Code of Practice for Plumbing and Drainage. Please allow at least two (2) working days for issuing of the Plumbing Permit. 25 Site construction sign required A sign or signs are to be erected at the frontage to the site that includes: - The number of this development consent - Details of the proposed development as shown on the consent - The name and address and contact number of the Principal Certifying Authority - The name and address and contact number of the builder or prime contractor, and - The words "No unauthorised entry to site". The sign is to be maintained until all works are completed. No sign is to have an area in excess of one (1) m2.

THE FOLLOWING CONDITIONS ARE TO BE COMPLIED WITH DURING CONSTRUCTION 26 Compliance Certificates required Compliance Certificates are to be submitted to the Principal Certifying Authority certifying that: a) All site management measures are in place; b) Fencing required to protect trees is in place in accordance with the condition of consent; c) The floor level has been set out at the minimum floor level required by the development consent. The compliance certificate is to be provided prior to construction or slab being poured. The compliance certificate is to be accompanied by a suitable certification by a registered surveyor; d) The building is correctly sited on the site and footings and concrete slabs have been constructed in accordance with the approved plans and relevant Australian Standards; e) Structural Framing has been completed, including wet area sealing, wind bracing, and tie downs; f) Fire wall and sound transmission have been provided, including fire rated ceilings; g) Landscaping has been implemented in accordance with the approved landscaping plan and conditions of development consent; h) The buildings have been finished in colours and materials in accordance with the approved schedule of colours and materials; i) Stormwater management systems have been constructed in accordance with approved construction plans, Council's standards and conditions of development consent; j) The development has been completed in accordance with the development consent and construction certificate.

27 Construction times Construction works must not unreasonably interfere with the amenity of the neighbourhood. In particular construction noise, when audible on adjoining residential premises, can only occur: a) Monday to Friday, from 7 am to 6 pm. b) Saturday, from 8 am to 1 pm. c) No construction work to take place on Sundays or Public Holidays.

28 Construction noise Construction noise is to be limited as follows a) For construction periods of four (4) weeks and under, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 20 dB(A). b) For construction periods greater than four (4) weeks and not exceeding twenty-six (26) weeks, the L10 noise level measured over a period of not less than fifteen (15) minutes when the construction site is in operation must not exceed the background level by more than 10 dB(A).

29 Builders rubbish to be contained on site All builders rubbish is to be contained on the site in a 'Builders Skips' or an enclosure. Footpaths, road reserves and public reserves are to be maintained clear of rubbish, building materials and all other items. 30 Energy Efficient Building Design The new buildings are to incorporate the energy efficient design measures to ensure the new buildings are environmentally friendly, energy efficient and water wise.

In particular the applicant is to install: · an interactive grid solar panel system with a minimum capacity of 5 kilowatts, possibly incorporating the support of NorthPower or other electricity distributor. · water efficient devices, with a AAA rating, including: (1) Pressure limiting valves; (2) Dual flush toilet systems; (3) Water efficient shower nozzles. · hot water systems with a minimum rating of 3.5 stars. All new hot water systems are to have a minimum rating of 3.5 stars. 31 Measures to control stormwater runoff Measures must be put in place to control stormwater runoff. These control measures must be in place prior to the commencement of works so as to prevent soil erosion and the transport of sediment from the site into either: a) adjoining land b) natural drainage courses c) constructed drainage systems, or d) waterways. All disturbed areas must be stabilised and revegetated. Turfing or another approved seeding method must be undertaken in each part of the development within 14 days of completion of earthworks. Topsoil must be preserved for site revegetation. Details of sediment control measures and revegetation works must be submitted to the Principal Certifying Authority for approval prior to release of the Construction Certificate. 32 Protection of existing stormwater pipes The proponent is responsible for ensuring that the existing stormwater pipe in the easement is not damaged while performing the works. If the existing stormwater pipe is damaged during the course of performing the works, the proponent must: a) notify Council immediately when the breakage occurs, and b) repair the damage at no cost to Council.

33 Control of construction noise All possible steps must be taken to silence construction site equipment. 34 Control of construction dust The proposed construction works and excavation works on the site must be carried out in such a manner as to minimise the effects of dust on adjoining residents. In particular all necessary dust suppression measures must be installed and operational prior to work commencing on the site. Excavation and construction works are to be suspended where environmental conditions inhibit effective dust control measures. 35 Wiring in flood prone buildings All wiring, power outlets, switches, etc., must to the maximum extent possible, be located above the flood planning level. All electrical wiring installed below the flood planning level must be suitable for continuous submergence in water and must contain no fibrous components. Only submersible-type splices are to be used below flood planning level. All conduits located below flood planning level are to be so installed that they will be self-draining if subjected to flooding. 36 Signs to be erected on building and demolition sites A sign must be erected in a prominent position on the work site: a) stating that unauthorised entry to the work site is prohibited, and b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed. THE FOLLOWING CONDITIONS ARE TO BE COMPLIED WITH PRIOR TO OCCUPATION OF THE BUILDING. 37 Site to be landscaped The site must be landscaped in accordance with the approved landscape plan. 38 Underground electricity to be provided Provision of written evidence to the Principal Certifying Authority from an electricity supply authority that satisfactory arrangements have been made for the provision of underground electricity supply from the existing electricity supply. The sealed section of the streets are to be underbored. 39 Re-instate redundant road pavement, kerb and gutter or foot paving Redundant road pavement, kerb and gutter, foot paving and existing entrances must be reinstated in accordance with the Roads Act consent and the detailed engineering construction plans as submitted with the Construction Certificate. 40 Sewer and water to be connected Sewer and water supply is to be connected to the premises in accordance with the approval granted to an application under Section 68 of the Local Government Act 1993. 41 Footpath to be paved Footpath areas are to be paved to match existing adjoining paving in accordance with plan/s approved by Council. 42 Access and facilities for persons with disabilities are to be provided Access and facilities for persons with disabilities are to be provided in accordance with AS 1428 - Design for Access and Mobility. Accessible car parking spaces are to be provided In accordance with the requirements of DCP 2002 and the BCA, within the underground carpark. 43 Fire detection and alarm system required A fire detection and alarm system must be installed and maintained within the building. Such system must comply with the Building Code of Australia (BCA) Part 3.7.2.2 requirements for a class 1b building. THE FOLLOWING CONDITIONS WILL NEED TO BE COMPLIED WITH AT ALL TIMES 44 Loading and unloading not to occur on the street All loading and unloading to take place within the curtilage of the premises. 45 Goods not to be stored or for sale on footpath No goods to be displayed for sale or stored on the footpath in front of the premises at any time without further consent of Council. 46 Display lighting to be shielded Any outdoor display lighting must be located or shielded so that no additional light is cast on adjoining land and so that motorists will not be distracted. 47 Display lighting time restriction Display lighting, other than that required for reasonable security, must not be used between the hours of 9.00 p.m. and 6.00 a.m. on any day. 48 Fire Safety Certificate (Part 9 of the Act) As soon as practicable after a final Fire Safety Certificate is issued, the owner of the building to which it relates: a) must cause a copy of the Certificate (together with a copy of the Fire Safety Schedule) to be given to the Commissioner of the NSW Fire Brigade, and b) must cause a copy of the Certificate (together with a copy of the current Fire Safety Schedule) to be prominently displayed in the building.

49 Separate application required for advertising structures A separate application is to be submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures, other than those permitted without consent under Council's Development Control Plan No. 16 - Exempt and Complying Development. 50 Ablution and clothes washing facilities to be maintained Ablution and clothes washing facilities must be maintained to a high standard of operational maintenance and kept in a clean and sanitary condition at all times. 51 Access must be permitted to Council officer Access must be permitted to any authorised Council officers during normal business hours for the purpose of ensuring compliance with consent conditions. 52 - Equipment in flood prone buildings All equipment installed below or partially below flood planning level must be capable of disconnection by a single plug and socket assembly. 53 Reconnection of electrical equipment in flood prone buildings Any electrical device and/or part of the wiring subjected to flooding must be thoroughly cleaned or replaced and checked by an approved electrical contractor before reconnection. 54 Flood Evacuation Plan A copy of the approved flood evacuation plan is to be laminated in clear plastic and displayed in a prominent location within the development Developer Contributions Table

The following contributions are current for a period of three (3) months from the date of this consent. If payment is made subsequent to three (3) months from the date of this consent the contribution must be increased by the amount by which the Consumer Price Index (all groups Sydney) has increased from the date of approval to the date of payment (percentage increase). If payment is made subsequent to the three (3) month period it is essential that a check be made with Council to ascertain the current rates. DA No. 10.2002.648.1 Property Address: Jonson Street, Byron Bay Catchment: Byron Bay Current Date: 30/10/03 Current CPI: 142.2 Consent Date: 16/9/03 Consent CPI: 142.2 Plan 1993 CP

ET, SDU or Amount per Contribution Spaces ET, STU or Levied Space Water: 16.11 $4,397.00 $70,835.67 Bulk Water 16.11 $1,380.00 $22,231.80 Sub Total $93,067.47

Acquisition - Passive 16.11 $4,771.00 $76,860.81 Embellishment - Passive 16.11 $835.00 $13,451.85 Embellishment - Active 16.11 $1,057.00 $17,028.27 Community Facilities 16.11 $478.00 $7,700.58 Bikeways 16.11 $200.00 $3,222.00 Street Tree Planting 16.11 $162.00 $2,609.82 Council Offices 16.11 $297.00 $4,784.67 Sub Total $125,658.00

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.

At a glance

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Before

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Judgment (25 paragraphs)

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Cases Cited (1)