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[2005] NSWLEC 265
Land and Environment Court (NSW)
2005-04-22
Byron Hotel P
Original judgment source is linked above.
CITATION : Byron Hotel P/L v Byron SC [2005] NSWLEC 265
APPLICANT Byron Hotel Pty Limited
PARTIES : RESPONDENT Byron Shire Council
FILE NUMBER(S) : 10271 of 2000 and 10989 of 2002
Appeal :- two s 96 applications to amend 2 existing consents. * floodwater storage capacity * protection of buildings from flooding * sewerage loads and treatment plant capacity * vehicle ramp gradients - sight safety distances - headroom and pedestrian crossings of ramps KEY ISSUES: * adequacy of truck loading dock * public access to toilets.
Byron Local Environmental Plan 1988 Australian Standard 2890.1 and 2890.2 LEGISLATION CITED: Byron Development Control Plan 2002 Environmental Planning and Assessment Act 1979
APPLICANT Mr M. Bofur, solicitor of Phillips Fox
RESPONDENT Mr S. McKelvey, solicitor of Byron Shire Council
JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
02/10989} BYRON HOTEL PTY LIMITED v BYRON SHIRE COUNCIL 00/10271}
JUDGMENT 1 This is two class 1 appeals, 10271/2000 and 10989/2002 between Byron Hotel Limited and Byron Shire Council in regard to two s 96 applications to amend DA 10.1999.782 and DA 10.2001.648.1. At a mention on these appeals the parties indicated they had reached consent orders but final documents had to be prepared and checked. The proposals had been exhibited for public submissions and there were no objections. The parties indicated that provided no oral evidence was needed they wanted the Court to deal with the draft orders and other documents in chambers when received.
2 The documents were duly received, the last letter of confirmation from the respondent seeking consent orders being dated 15 April in Exhibit 1. Appeal 10271 of 2000 dealt with the stage 1 development of the site known as the Byron Village. The Court issued consent on 20 December 2000. There had been two other s 96 applications approved since that time.
3 Appeal 10989 of 2002 dealt with stage 2 development of the Byron Village and it was approved by council on 16 September 2003, but was the subject of an appeal on conditions, and after negotiation, consent orders were issued on 22 October 2003. Although in two stages with two consents the development is on a combined parcel of land comprising five allotments, including the rear of the Great Northern Hotel that fronts Jonson Street, one of the main streets in the Byron Bay Shopping Centre.
4 Stage 1 and 2 are mainly on lots that currently have houses on them at the rear of the hotel. Stage 1 fronts Fletcher Street that runs parallel to Jonson Street, but it has shops and frontages also to Lawson Lane and Byron Street.
5 Stage 2 fronts Byron Street and Lawson Lane between stage 1 and the drive in bottle shop of the hotel. The vehicle drive through runs between Byron Street and the lane. It also acts as a drainage easement for overland flow in major storms and in lesser events for a large stormwater pipe that is to be put in as part of the development. This relates to the site being part of a passage for stormwater from the east part of the town to the west where it eventually goes into Belongil Creek.
6 In major storm events the engineers calculate floodwaters could back up into the site on the Byron Street frontage. The original consents require the buildings to be designed to raise the ground floor levels and the vehicle entry ramps to the basement car parks above the 1 in 100 year flood level. This required the design of a split level footpath on Byron Street so that disabled access could be gained to the raised floor level of the Byron Street shops, whilst the road level was kept at around existing levels to ensure flood storage capacity was not reduced.
7 The latter is important in long term planning because in major flood situations, waters that are displaced by land filling usually flood some other locations that have previously been flood free. This aspect required consideration in the s 96 applications.
8 Another concern in Byron township is the limited capacity of sewerage treatment works. As a result calculations on the sewer loads created by any new development are critical. This aspect required consideration in the s 96 applications.
9 Changes to the floor plans and vehicle basement entry ramp and exit ramp proposed in the s 96 applications were affected by the above as well as the normal considerations such changes create.
10 Issues in both appeals were the same and were: 1. Clause 45 Byron Local Environment Plan 1988 . (a) Has sufficient information been supplied to enable proper assessment of the arrangements for the provision for services with regard to modifications to various floor spaces? (b) Can consent authority be satisfied that sufficient arrangements have been made for the provision of services, taking into consideration modifications to various floor spaces? 2. Grades on exit ramp to Lawson Lane. (a) Whether the grades shown on plan 9707/23A modification 3 comply with the minimum requirements of the Australia Standard 2890.1 and council standards across the section of ramp incorporating the 1.5m wide footpath. 3. Loading dock. (a) Whether the loading dock shown on plan 0105/7B, modification 48 is of adequate size as recommended by Australia Standard 2890.2 to service the proposed development. (b) Whether the loading dock shown on plan 0105/16B, modification 96, complies with the minimum height requirements of Australia Standard 2890.2. 4. Access to toilets from the public road. (a) Whether the access to the toilets shown plan 0105/9C, modification 13, from the public footpath in Fletcher Street is undesirable in terms of amenity and safety. 5. Minimum floor levels for flooding. (a) Whether the reduction in floor levels back to RL2.6AHD, from RL 2.8AHD, as shown on plan 9707/9C, modification 21, comply with Part K of DCP2002 in terms of providing no free board to the estimated 1 in 100 year flood level. (b) Whether the reduction in floor levels back to RL 2.6AHD from RL 2.8AHD, as shown on plan 9707/9C, modification 21, is contrary to the provisions of Clause 24 of Byron Local Environmental Plan 1988. 11 The council accepted a report dated 17 November 2004, by Mr M Scott, consultant town planner. This followed earlier reports filed in the s 96 applications. The November report said, in summary: 1. The changes to the plans altered the size of some restaurants and shops and deleted three motel bedrooms, and one bedroom in a manager's suite in both stages 1 and 2. Also toilets in public areas of the proposal were to be controlled for use by patrons only, restaurants and shops would provide a key on request. This changed the calculation to the sewerage ETs and the on site grey water collection treatment and re-use system.
On balance the reductions and increases calculated to an overall reduction of 0.85 ET in these s 96 applications, and there was a pre-existing reduction of 0.33 ET from an earlier s 96 approval on stage 1. The sewerage consultant, Greg Alderson & Associates had confirmed this. The discharge to the council's sewer would, in fact be reduced from previous approvals and the grey water treatment equipment would not be compromised by the changes.
The footpath along the Lawson Lane frontages of stages 1 and 2 is dimensioned at two metres wide in accordance with condition C.18(F) of the stage 1 consent. Along most of the length the pavement extends further into the site, giving up to 4 metres of width. At the car park exit ramp the footpath is designed in at the correct cross falls.
Mr Scott notes, that most customer arrivals and departures with luggage et cetera , will occur at the Fletcher Street drop-off bay at the main foyer, or in the basement for people with cars. Deliveries by some light service vehicles are also likely to use the drop off bay.
13 Some drawings have been amended in the course of final negotiations following the hearing and sent to the Court. For clarity I have made two composite sets of the drawings from the documents filed, one for each appeal. Exhibit A contains copies of the drawings for appeal 10271 of 2000, being stage 1, and Exhibit B contains copies of the drawings for appeal 10989 of 2002, being stage 2.
14 Having considered the documents and reports I have come to the conclusion that all relevant matters have been properly considered and lead to the conclusion that there is nothing that would justify refusal of the consent orders sought by the parties.
15 Therefore the orders of the Court, by consent, part herewith published, are as follows:
All as amended by and subject to any conditions of this consent. 3 Exhibits A & B and documents filed are retained by the Court. In appeal 10989 of 2002: 1. The appeal is upheld.
1 Development is to be in accordance with approved plans
Development to be in accordance with the plans drawn by Christine Vadasz Architects Pty Limited, with drawing numbers as listed below and as submitted and stamped by the Court: DWG No. Date Drawing Title 0105-00E June 2004 Cover Sheet 0105-01 Oct 2001 Perspectives - Stage 2 0105-02A June 2004 Site Plan - Stage 2 9707-05D June 2004 Level 2 car park 9707-06C June 2004 Level 2 car park 9707-07D June 2004 Level 1 car park 9707-08C June 2004 Level 1 car park 0105-07C June 2004 Ground floor - Stage 2 0105-08B June 2004 First floor - Stage 2 0105-09B June 2004 Second floor - Stage 2 0105-10A June 2004 Roof plan - Stage 2 0105-11A June 2004 Landscape Plan -ground floor-Stage 2 0105-12A June 2004 Landscape Plan - first floor - Stage 2 0105-13B June 2004 Typical room layouts 1 0105-14B June 2004 Typical room layouts 2 0105-15A June 2004 Elevations - south 0105-16C June 2004 Elevations - north & west 0105-17B June 2004 Sections C & D 0105-18 Oct 2001 Shadow diagram - June 21ST 0105-19 Oct 2001 Overall site plan - Stages 1 & 2
All as amended by and subject to 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 Court stamp must be kept on site at all times while work is being undertaken. 3. Exhibits A & B and documents filed are retained by the Court.
K G Hoffman Commissioner of the Court ljr
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.
Byron Hotel P/L
Byron SC