Hosking Landscape (QLD) Pty Ltd v Byron Shire Council

Catchwords: APPEAL – development application – use of existing buildings as detached dual occupancy – conciliation conference – agreement reached – orders made

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 4.16, 8.7
Land and Environment Court Act 1979 (NSW), s 34, 39
Byron Local Environmental Plan 2014, cll 4.2A, 5.21, 6.6
Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 4.2, s 4.8
State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: The Court orders that:
The Court, exercising the functions of Byron Shire Council as the relevant consent authority, approves, under section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending Development Application No. 10.2023.502.1 such that the resultant development is a detached dual occupancy and a Class 10 building and to rely upon the following amended plans and documents:
Plan
Plan Name
Date Issued
P1 rev C
Site Plan
2 July 2025
P3 rev E
Existing Plan – Dairy Bales House
2 July 2025
P4 rev D
Existing Elevations – Dairy Bales House
2 July 2025
P5 rev E
Existing Plan - Class 10 Building
2 July 2025
P7 rev C
Existing Plan - Dual Occupancy Dwelling
2 July 2025
P8 rev C
Existing Elevations – Dual Occupancy Dwelling
2 July 2025
Supplementary Statement of Environmental Effects from Byron Bay Planning and Property Consultants
2 July 2025
Preliminary Site Investigation prepared by Cavvanba Consulting (Ref 25005 R02)
30 July 2025
The appeal is upheld.
Development Application 10.2023.502.1 lodged on 31 January 2024, as amended, for use of existing site buildings as a detached dual occupancy and a Class 10 building at 160 Tandys Lane, Brunswick Heads being Lot 1 in DP 532902 and Lot 3 in DP 863320 is determined by the grant of consent subject to the conditions at Annexure A.

Category: Principal judgment

Parties: Hosking Landscape (QLD) Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation: Counsel:
A Knox (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2024/227832

Publication restriction: Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application for the use of an existing dairy bale as a dwelling, at 160 Tandys Lane, Brunswick Heads. An earlier iteration of the development application was refused by the Council on 21 March 2024. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (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 [9] 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 22 July 2025. I presided over the conciliation conference.

3. Following 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 final signed agreement was filed on 18 August 2025. The agreement includes an order that the Court exercise the functions of the consent authority, pursuant to s 39(2) of the LEC Act, to agree to an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021).

4. The plans and supplementary Statement of Environmental Effects that form part of the amended development application were filed on 22 July 2025, and amend the development application by removing the use sought for the purpose of a rural worker’s dwelling and replace it with the use for the purpose of a dual occupancy. This means that the existing dairy bale that is sought to be used as a dwelling, is part of a detached dual occupancy where the other detached dwelling is one of the existing dwellings on the site. The amended development application also proposes to use a third building on the site, previously approved as a dwelling, as an ancillary building that will not be used as a separate dwelling. The amended development application is also accompanied by a preliminary site investigation dated 30 July 2025, which was filed on 14 August 2025.

5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act, including deferred commencement conditions pursuant to s 4.16(3). I have considered the contents of the Supplementary Statement of Environmental Effects dated 2 July 2025, together with the Class 1 Application and its attachments, the Bundle of Documents filed 9 July 2025 and the documents that are referred to in condition 1 of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

6. 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 could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties’ have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

7. The development works and proposed use are for the purposes of a dual occupancy, which is a permissible use in the RU2 Rural Landscape zone in which the site is located, pursuant to the Byron Local Environmental Plan 2014 (BLEP).

8. The proposed development does not include the erection of a dual occupancy, and therefore the requirements of cl 4.2A of the BLEP do not arise.

9. The existing dairy bale, to be used as a dwelling, is already serviced by the essential services required by cl 6.6 of the BLEP.

10. Clause 5.21 of the BLEP, concerning flood planning, applies to the site, as part of the site is in the flood planning area, and development consent must not be granted unless the Court, exercising the functions of the consent authority, is satisfied of the matters in cl 5.21(2). The development application concerns the use of an existing building that is outside of the flood planning area, and, based on the Supplementary Statement of Environmental Effects, I have considered the matters in cl 5.21(3) of the BLEP and I am satisfied of the matters in cl 5.21(2).

11. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 1 September 2023. Based on the BASIX certificate, I am satisfied of the requirement in s 2.1(5) of the State Environmental Planning Policy (Sustainable Buildings) 2022.

12. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, and, consistent with the requirements of s 4.6(2), I have considered a report specifying the findings of a preliminary investigation of the land concerned, in the Preliminary site investigation dated 30 July 2025, and I consider that no further investigation is required.

13. Section 4.14 of the EPA Act applies to the site, as it is mapped as bush fire prone land. Based on the letter from the NSW Rural Fire Service dated 7 February 2024 setting out the measures to be taken with respect to the development to protect persons, property and the environment from danger from a bush fire, I am satisfied that the requirements of s 4.14(1A) are met.

14. Chapter 4 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), which concerns koala habitat protection, applies to the site. As there is no vegetation clearing proposed within the area that is identified in the mapped Koala management lands, under the applicable Koala Plan of Management, there is no impact on koala habitat and I am satisfied that development consent can be granted in accordance with s 4.8(2) of Part 4.2 of the SEPP B&C.

15. The development application was notified between 9 February 2024 and 22 February 2024, and no submissions were received.

16. Having reached the state of satisfaction that the decision is one that the Court could have made 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)).

17. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or 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.

Order

9. The Court orders that:

10. The Court, exercising the functions of Byron Shire Council as the relevant consent authority, approves, under section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant amending Development Application No. 10.2023.502.1 such that the resultant development is a detached dual occupancy and a Class 10 building and to rely upon the following amended plans and documents:

| Plan | Plan Name | Date Issued | | P1 rev C | Site Plan | 2 July 2025 | | P3 rev E | Existing Plan – Dairy Bales House | 2 July 2025 | | P4 rev D | Existing Elevations – Dairy Bales House | 2 July 2025 | | P5 rev E | Existing Plan - Class 10 Building | 2 July 2025 | | P7 rev C | Existing Plan - Dual Occupancy Dwelling | 2 July 2025 | | P8 rev C | Existing Elevations – Dual Occupancy Dwelling | 2 July 2025 | | | Supplementary Statement of Environmental Effects from Byron Bay Planning and Property Consultants | 2 July 2025 | | | Preliminary Site Investigation prepared by Cavvanba Consulting (Ref 25005 R02) | 30 July 2025 |

2. The appeal is upheld.

3. Development Application 10.2023.502.1 lodged on 31 January 2024, as amended, for use of existing site buildings as a detached dual occupancy and a Class 10 building at 160 Tandys Lane, Brunswick Heads being Lot 1 in DP 532902 and Lot 3 in DP 863320 is determined by the grant of consent subject to the conditions at Annexure A.

4. The Court notes that the applicant has agreed to pay those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed, within 90 days of the date of these orders.

J Gray

Commissioner of the Court

Annexure A (318 KB, pdf)

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