Hannas Contracting Services Pty Ltd v Byron Shire Council

Representation: Counsel:
T To (Applicant)
P Vergotis (Solicitor)(Respondent)
Solicitors:
Mills Oakley (Applicant)
Madison Marcus (Respondent)

File Number(s): 2024/401254

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination of Development Application No. 10.2024.57.1 on 12 December 2024, specifically in relation to the Applicant’s dissatisfaction with certain conditions of consent.

2. The Development Application, as amended, seeks development consent for the 17-lot industrial subdivision including creation of a drainage lot, residue lot, roadworks, bulk earthworks, vegetation removal and associated infrastructure at 22B Melaleuca Drive, Byron Bay NSW (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 April 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties agreed on a number of amendments to the conditions of consent including in regard to the Acid Frog Management Plan, pedestrian/cycleway access to the site, maintenance of stormwater infrastructure and an alternative layout for the nearby Ewingsdale Road intersection to address Council’s concerns regarding traffic management and safety.

5. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), Byron Bay Council has approved amending the Development Application in accordance with the amended plan for Ewingsdale Road Intersection Alternative 1 – Layout Plan, Drawing EWI100 (Rev D).

6. As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

7. On 2 June 2025, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, and subject to conditions in Annexure A.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

9. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

10. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. In particular, the parties agree and I am satisfied in regard to the following matters:

12. That the amended Development Application was lodged with the consent of the owners of the land to which the development relates.

13. The proposed development is permissible with consent in the IN2: Light Industrial zone under the Byron Local Environmental Plan 1988.

14. The amended conditions of the Development Consent continue to satisfy the applicable provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021, State Environmental Planning Policy (Resilience and Hazards) 2021, and State Environmental Planning Policy (Biodiversity and Conservation) 2021.

15. The relevant provisions of the Byron Local Environmental Planning 1988.

16. The mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

17. The amended conditions of the Development Consent are appropriate and lawful having regard to the provisions of ss 4.16 and 4.17 of the EPA Act.

Conclusion

12. Based on the information before the Court, including the amended conditions of consent in Annexure A, the parties agree and I am satisfied that the amended Development Application can be approved taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the applicable environmental planning instruments, the likely impacts of the development, the suitability of the site, and the public interest. As such, the Court may exercise its function under s 4.16(1) of the EPA Act and approve the amended conditions of the Development Consent.

13. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

14. I have considered the jurisdictional prerequisites, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

15. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

16. The Court orders:

17. The appeal is upheld.

18. Development Application 10.2024.57.1, for the 17-lot industrial subdivision including creation of a drainage lot, residue lot, roadworks, bulk earthworks, vegetation removal and associated infrastructure at 22B Melaleuca Drive, Byron Bay NSW, is determined by the grant of development consent, subject to the conditions set out in Annexure A.

19. The Court notes that pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the Respondent’s reasonable costs thrown away as agreed or assessed.

M Young

Acting Commissioner of the Court

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Annexure A.58 KB.pdf