Hultgren v Byron Shire Council

Planning controls 8The site is zoned 4(a) (Industrial Zone) under the Byron Local Environmental Plan 1988 (the LEP) and the uses are permissible with consent. The objectives of the 4(a) zone are: The objectives are: (a) to set aside certain land for the purposes of industry within convenient distances of the urban centres of the Shire of Byron and with good access to arterial roads, (b) to enable certain forms of development compatible with or ancillary to the industrial uses of the land, (c) to allow detailed provision to be made, by means of a development control plan, to set aside specific areas within the zone for different industry types and intensities of development, (d) to ensure industrial development creates areas which are pleasant to work in, safe and efficient in terms of transportation, land utilisation and service distribution, and (e) to permit tourist facilities where it can be demonstrated that the development is ancillary to the industrial use of the land. 9Clause 9(3) provides that the council shall not grant consent to the carrying out of development unless it is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 10Clause 45 of the LEP provides that the council shall not grant consent to the carrying out of development "unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land".

Background to the application 11In order to understand the competing positions of the parties on the nature and extent of the development application the subject of these proceedings, and their respective positions on the conditions remaining in dispute, it is necessary to outline the history of the earlier development consents and modifications relating to the site. The following summary is taken from documents included in the Council's bundle, being exhibit 3, and lodged with the Class 1 appeal. 12The industrial building on the site was approved in 1993, and development consent was granted in 2003 for a change of use for part of the building from light industry to an artists work studio.

2005 Consent 13Development application DA 10.2004.255.1 lodged on 27 May 2004 sought consent to raise part of the roof of the existing industrial building on the site; to add to the approved land use that of a "caretakers flat", "place of assembly" and a "recreation establishment"; and to add a small kitchen of 50 sqm to provide food and drink to persons using the facilities in takeaway containers only. The physical alterations proposed involved the lifting of the central section of the factory building roof to enable trapeze artists to train on the trapeze to be installed, and a gymnasium to assist with the trapeze training (regarded as a Recreation Facility). The Statement of Environmental Effects (SEE) provided with DA 10.2004.255.1 stated that the general hours of operation were proposed to be 8.30am to 11.30pm seven days a week, enabling training during a broad period of the day, and the holding of performances (Place of Assembly); and that it was also proposed to make the premises available for general entertainment (Place of Assembly), with operating hours between 5pm and 6am so as to ensure that they occurred outside the operating hours of the surrounding industrial estate, with major activities limited to 12 per year. 14On 16 February 2005 the Council granted development consent to DA 10.2004.255.1 subject to conditions (the 2005 Consent). The Notice of Determination (exhibit 3 tab 3) describes the proposed development as "Alterations and additions to an existing industrial building". Condition 7 approved the food shop "for use in conjunction with the activities carried out within this building", and provided that the food shop "is not approved as a restaurant or take-away shop in any other circumstances". Condition 8 imposed the following restrictions on events: Because of the lack of on-site parking, the following restrictions are placed on the activities approved by this application: Occasional special events maximum 1100 persons: 7.00pm to 6.30am Special shows and demonstrations: maximum 330 persons: 5.30pm to 1.00am (Monday to Friday), 12.00pm Saturday to 1.00am Monday Other events: maximum 100 persons: Activities cease at 1.00am. Any alteration to the above hours of operation will require the further consent of Council. 15Condition 2 provided that the part of the consent that gave approval to the carrying out of large events in the Place of Assembly was for a maximum period of 2 years, taken to have commenced from the date that the Occupation Certificate that allows the events to occur has been issued. "Large events" were "events nominated in the application as dance parties or similar functions that may attract up to 1100 persons". Condition 2 further provided that such events "are limited to a maximum of 8 events a year", programmed to avoid other large events in Byron Bay including the Blues Festival and Splendour in the Grass Festival. Condition 2 concluded: At the end of the two-year period, Council would consider an application to review this restriction. That review would be subject to an assessment of the impact of the operation of the large events and would take into consideration any objects or complaints received. 16Condition 29 required the applicant to provide an Event Management Plan to Council 4 days before the commencement of any large event. 17Condition 30 required that before commencement of activities approved by the application, a Section 88B Instrument was to be provided to the Council indicating: (a) Easement for car parking The creation of a suitable easement for the provision of 24-car parking spaces on lot 17 for large events carried out on lot 16. The easement benefits lot 16 and burdens lot 17. 18Condition 14 required, before issue of a Construction Certificate, payment of developer contributions under s 94 of the Act levied in accordance with the Byron Shire Council Section 94 Development Contributions Plan for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration dated October 2001 (the 2001 s94 Contributions Plan). 19A Final Occupation and Compliance Certificate was issued on 11 May 2006 (exhibit 3, tab 5). 20The 2005 Consent was amended by s96 modification applications DA 10.2004.255.2 and 10.2004.255.3 in 2005, to delete the caretakers flat, and in 2006, to remove conditions requiring the provision of portable toilets for large events to be achieved through purchase of ETs for the additional load generated by the numbers of permitted patrons.

2009 Consent 21On 30 July 2007 the applicants lodged a development application DA 10.2007.415.1 seeking consent for "Continued use of industrial building as a Place of Assembly & Recreation Facility with ancillary restaurant". The SEE provided with DA 10.2007.415.1 stated that the applicants sought "to endorse the current use of the premises" through a new consent with no timeframe limitation, and that no changes to the structure or type of use of the premises was sought. The development application sought to amend condition 2, so as to permit the Place of Assembly to cater for events up to 1,100 persons; delete condition 29 "as event operations have been non problematic", and amend condition 8 so as to restrict special events up to 1,100 persons between 7.00pm to 6.30am, special shows and demonstrations maximum 330 persons generally 5.30pm to 1.00am (Monday to Friday) 12.00pm Saturday to 1.00am Monday, except for activities outside those hours where patrons arrive and depart solely by bus eg school groups who attend special events, and other events maximum 100 persons activities cease 1am (SEE, exhibit 3, p119). 22The development application was assessed by Council staff, and in a report to the Council 6 December 2007, the Council's Environmental Health Officer assessed Noise, commenting (exhibit 3, pp 151-152): The final occupation certificate was issued on 20th October 2005 for the Byron Entertainment Centre (BEC) at 17 Centennial Circuit Byron Bay. A number of events were held on the property following this date. During 2006 I attended a number of Saturday night events at the centre and monitored the sound levels, particularly after midnight. The comments that I make in relation to events held at BEC are as follows: 1. The venue managers were, at all times, responsive to ensure compliance with the DA conditions of consent. They took the initiative and purchased a basic sound level measuring device to facilitate effective sound level control. They responded positively to both Police and Council officers requests. 2. The stages within the BEC building were located in the Southern part of the building projecting towards the open 'roller' doors. At a nominal 90 to 95 dB(A) inside the building (near the 'roller' doors) there was only one location where neighbourhood complaints were received. The building has a large internal volume. 3. Residents of Julian Rocks Drive complained that noise continued to intrude into their houses after midnight. On each occasion where a complaint was made (after the event) the noise was determined to have been generated off the BEC property by other unapproved activities. 4. No other neighbourhood noise complaints relating to BEC were received by council. 5. The sound level measurements were made at Julian Rocks Drive (approximately 500m NE of the site), West Byron Shopping Centre (approximately 280m NE of the site) and Boronia Place (approximately 500m E of the site). Noise measurements within 100m of the site were heavily influenced by local traffic and patron activities outside the premises, and not a reliable indication of activity on the BEC property. The Leq (A-weighted) sound levels were below 42 dB(A) on all occasions after midnight, at the closest measuring locations. 6. The solid masonry construction of the industrial building, effective management of noise levels at the 'mixing' desk, and attenuation distances to nearby residential homes ensured reliable compliance with Industrial Noise Policy standards. Noise levels at 10 Centennial Circuit (approximately 70m NE of the property) were in the Leq(A) range 70 to 76 dB(A), but heavily influenced by other off-site activities. 7. The traffic associated with activities on the BEC site remained at relatively constant levels for the duration of the youth events. Many Patrons arriving, partying outside, entering the BEC for a short time and then leaving; this pattern repeated while the venue operated. Limited use of public transport was observed. Parking (and partying) in surrounding private property resulted from the limited availability of on-street parking. Very limited parking on BEC property was allowed. 8. Public safety issues were also noted for dark unlit streets, alcohol and drug affected patrons walking along the roadways. Many patrons, wearing dark clothing, walked down the centre of the streets and appeared oblivious of the danger from traffic. Footpaths were undefined, and regularly used as parking areas. Some industrial land uses protruded into the road reserve and created hazardous conditions. 9. I was not aware that a residential caretaker was located opposite the BEC, until reading the consultant's reports. There were no complaints from this source during the BEC events, and no sound level assessment made by me on the property containing the caretaker's residence (16 Centennial Circuit). 10. While BEC management were not solely responsible for each event (the venue being provided to other third parties for a fee), the noise management was consistently found to be well regulated and not intrusive for Sunrise beach residents. 23On 31 July 2008 the Council determined to refuse consent. The applicants requested a review under s 82A of the Act and on 22 October 2009 the Council granted consent subject to conditions (the 2009 Consent). 24The Report provided by Council staff for the Council meeting on 22 October 2009 that considered the s 82A review noted that a catering licence had been issued under the Liquor Act to allow the sale of alcohol from 30 minutes before the function, occasion or event, or 6am (whichever is the later) until one hour after the conclusion of the function, occasion or event; or if it continues past midnight - up to 3am on the next day (whichever is the earlier) (exhibit 3, p 232). That Report referred to Development Control Plan 2002 Part A6 Planning for Crime Prevention, and noted that "the operation of the venue has been occurring without known crime incidents" (exhibit 3, p 237); and in relation to Noise Impacts, noted that Council's Complaints Register indicated that there had been only one complaint since BEC began operations (12/13 August and 19/20 August 2006), and concluded that "the 'trial events' at BEC are operating in accordance with council's requirements" (exhibit 3, p 241). 25The conditions of the 2009 Consent relevantly included condition 4, Restrictions on Use, which provided in condition 4(b) for 4 daytime events per year catering for up to 900 people per event, subject to a 12 month trial period, with patronage limited to schools, church groups and the like and access by bus transport only; required monitoring of bus and traffic circulation around the site and provision of a Revised Traffic Assessment Report reviewing the impacts and operations of the 4 daytime events; and provided that following review if Council was satisfied that daytime events did not adversely impact on the local road network, traffic circulation and parking availability, further approval could be granted by way of written advice for continuous use for 4 daytime events per year with a maximum of 900 people. Condition 4(c) specified the permissible times for events: Use & associated event Event number per year Event times/days Maximum number of persons (incl staff) Recreation Facility Trapeze/circus activities & training; Place of Assembly small events unlimited 6.00am to 11.00pm seven days per week 100 Place of Assembly occasional special events unlimited 5.30pm-1.00am week days, noon to 1.00am weekends 400 Place of assembly large evening events 8 6.00pm-1.00am Monday to Friday; Saturday 1.00pm to 1.00am; Sunday noon to 1.00am 900 Place of assembly large overnight events 4 6.00pm - 6.30pm Monday to Friday; 5.00pm - 6.30am Weekends 900 Place of assembly large daytime events 4 7.00am - 1.00am 12 month trial period only. Events for schools and church organisations and the like only with patrons transported by bus only. 900 Ancillary restaurant Ancillary to other uses Ancillary to other uses Ancillary to other uses

26Condition 5 required that the applicant obtain a certificate of compliance under s 307 Water Management Act 2000 (WM Act) before the issue of a Construction Certificate. Condition 11 required that the 2005 Consent be surrendered, in a written memorandum to Council in accordance with cl 97 of the Environmental Planning and Assessment Regulation 2000. Condition 14 required that the applicant provide to Council a s 88B Instrument indicating: (a) Easement for car parking The creation of a suitable easement for the provision of 24-car parking spaces on lot 17 DP 812667 for events carried out on lot 16 DP 812667 after 5.30pm on any day. The easement benefits lot 16 and burdens lot 17. Council is to be named as a party from whom approval is required for the removal of any such easement. 27Condition 15 Noise Management required the applicants to maintain an "event hotline" contact telephone number while amplified music occurs in the BEC, to record complaints and response in accordance with a noise management plan.

2011 Modification 28On 18 July 2011 the applicants lodged an application (DA 10.2007.415.2) to modify the 2009 Consent and development consent DA 10.2006/648.2 dated 21 October 2009 (which related to the adjoining lots 123 and 124 Wollongbar Street: exhibit 3, p 279). The s 96 modification application relating to the 2009 Consent is outlined at pp266-278 of exhibit 3, and is described as being to amend the description of land to be developed, description of proposed development and conditions 4 (use of the ancillary restaurant, removal of 12 month trial period for large daytime events, change hours and increase number of patrons for place of assembly use) and 15 (to remove requirement for an event hotline number), and delete conditions 6, 7, 8, 9, 10, 11 (surrender of 2005 Consent), 12, 13, 14 (s88B Instrument), and 18. 29The modification application was approved on 6 September 2011 subject to conditions (exhibit 3 tab 23) (the 2011 Modification). Relevantly for the purposes of the present appeal, the 2011 Modification approved the amendment of condition 11, which had required surrender of the 2005 Consent, to read: 11 Modification of Conditions of Development Consent 10.2004.255.1 The following conditions to DA 10.2004.255.1 are to be deleted from that consent prior to the issue of an Occupation Certificate: Condition 2 - Development Timeframe Condition 8 - Restriction on events (car parking) Condition 9 - Restriction on events (effluent disposal) Condition 11 - Adequate toilet facilities (Portable toilets) Condition 12 - Sewerage disposal arrangements .... 30No amendment was made to condition 4, or 14.

Development Application DA 10.2012.583.1 31Development Application DA 10.2012.583.1, which is the subject of the present appeal, was lodged on 7 December 2012, and described the development as "increase permissible number of occupants for Place of Assembly/Public Entertainment in order to be consistent with other approvals for the site and regulations". The proposed development was summarised: This application seeks consent to: 1. Reinstate a limited number of events for up to 1,100 participants (1,100 people allowed per DA 10.2004.255.1-3: the number of events allowed per DA 10.2007.415.1): 8 events for up to 1,100 people 5pm to 1am 4 events for up to 1,100 people 5pm to 6am 4 events of up to 5 days each for up to 1,100 people 7am to 1am with attendance by bus (similar to DA 10.2007.415.1) 2. Allow up to 400 participants at events from 5pm weekdays (approved via DA 10.2007.415.1, while DA 10.2004.255 allows 330) and 7am on weekends. 3. Allow up to 160 participants daily as per DCP parking requirements. 4. Use Food Shop (approved via DA 10.2004.255.1-3)/Restaurant (approved via DA 10.2007.415.1-2) for service to the public, take away and off-site catering. 32In its determination of DA 10.2012.583.1 the Council amended condition 2(a) so as to permit the ancillary restaurant to "serve members of the public and can operate as a takeaway facility", with permissible times specified in condition 2(b) to be 6am to 1.00am, and a maximum number of persons to be 100 during the hours 6am to 6pm. The Council retained the maximum number for the Recreation Facility, 6.00am to 11.00pm seven days a week, at 100. Condition 2(a) provided: The total number of people either using the recreational facility and restaurant shall be limited to 100 people in total due to the limited car parking available on Lot 16, DP 812667. 33As noted above, during the conciliation process agreement was reached on an amendment to condition 2(b) to permit the Place of Assembly occasional special events for up to 400 people to commence at 5.30pm instead of 6.00pm and provide the maximum of 100 for the ancillary restaurant between 6am to 5.30pm, instead of 6pm. Agreement was reached for the deletion of condition 5, requiring a Social Impact Statement each year, on the addition of "condition 29 - Event Management Plan" to the list of conditions to be deleted from the 2005 Consent under condition 6.

Evidence 34The hearing commenced on site, including a view. There were no objectors. 35Expert planning evidence was provided by Mr Chris Lonergan on behalf of the applicant and by Mr Christopher Soulsby on behalf of the Council. Mr Lonergan is a consultant planner, who has been involved in the preparation of development applications for the applicants. Mr Soulsby is presently Development Contributions Planner with the Council. Mr Lonergan and Mr Soulsby prepared a joint report (exhibit 6), and gave oral evidence. The planners agreed with the maximum 100 persons for unlimited daytime events 6.00am to 1.00am seven days a week, Mr Soulsby commenting that that would minimise the impact on the functioning of the road network in the Arts and Industrial Estate. The planners agreed that it is reasonable that the Special Events be unlimited in occurrence and that their timing be restricted to 5.30pm to 1am weekdays and 7am Saturday to 1am Monday with the number of person limited to 400, Mr Lonergan noting that the 5.30pm commencing time coincides with the reduction of traffic volumes as evidenced in the Council traffic counts, and Mr Soulsby commenting that the increase from 330 in DA 10.2005.255 to 400 persons was unlikely to have a significant impact on the functioning of the road networks provided those events commence after 5.30pm at a minimum. They agreed that Place of Assembly large evening events could reasonably occur at a rate of 12 per year and be regulated to 6pm to 1am weekdays and Saturday and Sunday 7am to 1am with numbers limited to 900, at a maximum of 5 days per event. The central area of disagreement between the planners as to the number and timing of events related to the application for 4 large overnight events. 36The planners agreed on condition 3, requiring a transport management plan for Bus only events; condition 4 requiring an events management plan for events exceeding 330 persons; that condition 5 requiring a social impact report should be deleted; that condition 10 requiring the provision of additional lighting for events larger than 330 persons was a reasonable condition; and with condition 7 requiring the surrender of the 2009 Consent. 37Expert engineering evidence was provided by Mr John Samuels on behalf of the Council. Mr Samuels provided an expert report (exhibit 7), prepared before the joint report of the expert planners, and he was not required for cross examination. In his expert report Mr Samuels stated (at p 3) that the number of 100 persons for daytime events 6.00am to 1.00am seven days a week was originally derived based on the number of available on site car spaces on Lots 16 and 17 which could facilitate 40 car spaces, and a car occupancy rate of 2.5 persons which was generally the rate derived in traffic modelling for similar events such as the Blues Festival, Splendour Festival, Writers Festival, which equated to a limit of 100 persons. Mr Samuels noted that Council's traffic count data showed that hourly traffic volumes remain consistently steady and high throughout the day, particularly through the afternoon, and consistently drops off in the hour after 6pm. Accordingly, he recommended a 6.30pm start time for special events.

Consideration 38The applicants' position is that they are seeking consent for an application that, as submitted by their representative, "in truth, seeks to consolidate development permitted pursuant to 2 previous development consents", and as stated in their Facts and Contention (exhibit A, p 17) "simply seeks to resolve the inconsistencies between the 2 pre-existing approvals and to end the monitoring by and reporting to council that are inconsistent with a permanent consent". The applicants state (exhibit A, p 17) that they continue to rely on the 2005 Consent, and that the 2009 Consent remains unused. 39The Council's position is that the development application is not simply a bundling up of the earlier consents, but is seeking consent for different forms of development on the site, as demonstrated by a comparison between the times and numbers of events approved in the 2005 Consent, with large events subject to a trial period, with those sought in this application. 40In my view, neither characterisation of the development application is entirely accurate. It was common ground, however, that there is merit in consolidating all previous consents into one development consent which prescribes maximum event times and person capacity for the site. In that regard, I accept the agreed evidence of the planners as to the variations to start times and numbers for the recreation facility, and place of assembly occasional special events, large evening events and large daytime events; and the change to the operation of the ancillary restaurant. The restrictions on event numbers, times, days and maximum numbers of patrons now incorporated in condition 2(b), and conditions 3 and 4 relating respectively to a transport management plan for bus only events and an event management plan for events exceeding 330 patrons, have been framed by reference to potential impacts on traffic and parking in the industrial estate, and are consistent with the objectives of the 4(a) zone under the LEP.

Large overnight events 41The applicants seek consent for up to 4 events per annum for up to 900 people between the hours of 5.00pm and 6.00am. 42The Council submits that there is insufficient information to assess properly the proposed four overnight events, and that the earlier assessments should not be relied upon because they lacked proper rigour and analysis based on crime prevention principles. 43The applicants submit that they have shown they are responsible operators who can manage such events without complaint and there is sufficient information for the Court to have confidence that a continuation of the opportunity to conduct overnight events by way of the grant of consent in a manner that is consistent with earlier consents will not give rise to adverse impacts. 44Mr Lonergan's evidence was that up to four events permitted to extend to 6.30am the following morning was a reasonable request, given the nonresidential nature of the area, the fact that the capacity and its associated impacts were still limited to 900 persons, and the fact that events would still finish before the commencement of other landuse activities in the industrial estate thus avoiding conflict particularly in relation to traffic and parking. Mr Soulsby did not agree. In his opinion, Mr Lonergan was correct in that there would be minimal additional traffic and parking impacts caused by the extension of the hours of operation, however traffic and parking impacts were not the reason for his disagreement. No social impact report had been prepared, no crime prevention assessment had been prepared, and the matter was not referred to the NSW Police for their input. In Mr Soulsby's opinion there is inadequate information about the potential impacts to enable a proper assessment, and insufficient information available to determine whether having the venue open for 23 and a half hours in a 24 hour period would not have a detrimental social or crime related impacts. 45In oral evidence Mr Soulsby stated that the assessment undertaken of then proposed large overnight events for the 2009 Consent was insufficient. The report did not indicate that the assessment was compliant with CPTED guidelines which required that the application be referred to NSW Police, and it did not indicate that the officer had any training to undertake the assessment. Mr Soulsby acknowledged that BEC is not located in the Byron Bay Town Centre, where the venues involved in the Byron Bay Liquor Accord (exhibit C) are located. However, he was of the opinion that BEC will attract patrons who have left licensed premises. The area is poorly lit and has a lack of passive surveillance, and so the premises could potentially attract intoxicated persons, and he is concerned about the lighting. He agreed that the venue is not the same as live venues in town, however there is insufficient evidence for him to assess the potential impacts. Mr Soulsby stated that the level of risk increases with the level of intoxication, and it is a risky environment. Condition 10 requiring additional lighting would address concerns about patrons leaving safely, however it is still not a safe environment. 46Mr Lonergan's evidence was that BEC is a destination venue, spatially removed from other late night venues. He was not aware of any other licensed venues trading until 6am. In his opinion this venue is different, its general character is low key with occasional weekend events and very occasionally an event that goes on until the early hours, and people will go there and stay there. Generally after 5pm the industrial estate is deserted and so there is no increased amenity impact if it goes until 6am because there is no conflict with other land uses, and it is not adjacent to a residential area. Mr Lonergan agreed that there would be a concern if people went there from other venues in the Byron Town Centre, and that could be managed with an adequate Management Plan and adequate lighting. Mr Lonergan referred to his experience living in the area for 30 years and being a musician, and stated that he had had the opportunity to attend larger events through the existing consent, most recently being an event of up to 400 people about six months ago, until 11pm. 47In considering whether the application to allow up to 4 overnight events for up to 900 people should be approved, I accept the evidence of Mr Lonergan and Mr Soulsby that the extension to 6.30am would result in minimal adverse traffic and parking impacts. The Weekly Vehicle Counts for Bayshore Drive annexed to the planners' Joint Report indicate that during weekdays there is minimal vehicle movement before 6.00am, with movements increasing over the period from 6.00am to 10.00-11.00am, with the weekend peak being between 11.00am to 1.00pm. 48In considering the proposed commencing time, the planners agreed that a 6.00pm commencement time for large evening events would coincide with the reduction of traffic volumes as evidenced in Council traffic counts. The Weekly Vehicle Counts indicate weekday traffic peaks between 3.00pm to 4.00pm and 4.00pm to 5.00pm, depending on the day, and between 11.00am to 1.00pm on weekends. Mr Samuels' evidence (exhibit 7, p 3) was that large evening events should not commence before 6.30pm, based on Council Traffic Count data that confirmed that hourly traffic volumes remain consistently high throughout the day particular through the afternoon and consistently drops off in the hour after 6.00pm. 49If the large overnight events are otherwise appropriate to be approved, I am satisfied, based on the planners' evidence, the traffic counts, and the agreed position as to place of assembly large evening events, that they should not be permitted to commence before 6.00pm Monday to Friday. While I note that Mr Samuels adopted a more cautious approach, I am satisfied that the start time of 6.00pm as agreed between the planners is supported by the traffic count data provided in exhibit 6. 50Consideration of other potential impacts must be undertaken by reference to the evidence available to the Court, and not simply by reference to there having been previous Council approvals. Evidence as to any adverse impacts of previous large events would be relevant in that consideration. 51The 2005 Consent approved, on a two year trial basis, up to 8 occasional special events from 7.00pm to 6.30am for a maximum of 1100 people. The 2009 Consent approved 4 large overnight events for up to 900 people, however it was noted in the assessment of DA 10.2012.583.1 (exhibit 3, tab 28) in December 2012, that because BEC is operating under the 2005 Consent and not the 2009 Consent which would require an occupation certificate, there was then currently no approval for large events. 52There is some evidence as to the previous operation for large overnight events, in an emailed response on 25 February 2013 by the applicants to a question from Council, providing information based on the condition of the 2005 Consent which required the applicants to notify Council of all events anticipated to exceed 330 people. That response (exhibit 3, pp 349-350) identified 11 events between May 2006 to November 2007, five of which are described as "all-night dance party" (19 August 2006, 16 September 2006, 4 November 2006, 2 December 2006, 31 December 2006); two of these events had 650 and 850 tickets sold, while for the other events attendance is not on record. The response identifies two Xavier Rudd concerts (2 November 2007, 3 November 2007) with 950 and 750 tickets sold; the times are not provided. As previously noted, the Report provided for the s 82A review for DA10.2007.415.1 identified one of two complaints relating to 19/20 August 2006, which would be consistent with the information provided in the email of 25 February 2013. 53There is some evidence as to noise and other impacts from evening operations at BEC, primarily in the assessment of the development application DA 10.2007.415.1, where the Council's Environmental Health Officer had noted attending "a number of Saturday night events at the centre and monitored the sound levels, particularly after midnight" (exhibit 3, p151). Details of that officer's comments are in paragraph [53] above. The Report provided for the s 82A review in relation to that development application concluded, in relation to noise, that the trial events were operating in accordance with Council's requirements. Mr Soulsby raised concerns about the assessment undertaken in that report in relation to crime prevention. I agree that that part of the assessment does not expressly state how the assessment complied with CPTED guidelines. However, the author's concluding statement that "the operation of the venue has been occurring without known crime incidents" was not challenged. The assessment undertaken for the 2011 Modification did not identify, or discuss, any adverse impacts other than raising concern about traffic and parking, particularly in relation to the large daytime events (exhibit 3, tab 22). The Council responded to a Notice to Produce for Inspection dated 16 July 2013 requiring production of any document recording a comment or complaint made by a member of the public, or recording observations of a member of Council staff or contractor, with respect to the operation of the BEC, by providing a CD. The applicants' representative submitted that his review of the CD, which he stated contained 740 files, indicated that many of the documents bore no relationship to the Notice. The Council's representative did not rely on anything in that CD that might provide evidence as to complaints or comments or observations with respect to the operations of BEC. Based on this material, I accept the applicants' submission that in the absence of complaints, they have shown they are responsible operators who can manage such events without complaint. 54I accept the evidence of Mr Lonergan that the physical location of the premises outside of the Byron Bay Town Centre is a factor in considering the potential for adverse impacts of the extended operation past 1.00am. Mr Lonergan accepted, however, that there would be a concern if people went to BEC from other venues in the Byron Town Centre. Mr Soulsby's concerns about poor lighting and lack of passive surveillance opportunities in the industrial area, and thus the potential for public safety issues, are confirmed by the report provided by the Council's Environmental Health Officer in the assessment of development application DA 10.2007.415.1, who commented (exhibit 3, p 152) on observations of "dark unlit streets, alcohol and drug affected patrons walking along the roadways". 55I am satisfied that the concerns that BEC might attract people who had left other licensed premises in Byron Bay Town Centre are warranted, based on that evidence, and also that they could be addressed, as discussed during the hearing, if the operation for large overnight events were restricted to ticketed events, with a prohibition on entry to the venue after a specified time. That could appropriately be identified by reference to closing times of other licensed venues. I also accept, based on the evidence of the planners, that potential public safety risks could be addressed at least to some extent by the provision of additional street lighting to improve safety for patrons parking of necessity some distance away from the venue. That issue is discussed below in relation to proposed condition 10. Subject to the imposition of such conditions to mitigate potential adverse social or public safety impacts, I am satisfied that it is appropriate to approve the proposed four large overnight events, starting no earlier than 6.00pm.

Amendment of the description of development approved by the 2005 Consent 56Condition 6 as proposed by the Council, and incorporating the agreement to add the reference to Condition 29, states: 6. Modification of Development Consent 10.2004.255.1 (As amended) Development consent 10.2004.255.1 (as amended) is to be modified in accordance with section 80A(5) of the Environmental Planning and Assessment Act 1979 and clause 97 of the Environmental Planning and Assessment Regulation 2000 by the deletion of the following conditions: Condition 2 - Development Time Frame Condition 3 - Bond Condition 7 - Food Shop Condition 8 - Restriction on events (car parking) Condition 9 - Restriction on events (effluent disposal) Condition 10 -Car Parking Condition 11 - Adequate toilet facilities (Portable toilets) Condition 12 - Sewerage disposal arrangements Condition 29 - Event management plan 57The applicants seek to amend condition 6 to include in the modification of the 2005 Consent the addition of the words "and change of use to recreation facility and place of assembly" to the description of the approved development as "Alterations and additions to an existing industrial building". If amended as requested by the applicants, the description of the 2005 Consent would read "Alterations and additions to an existing industrial building and change of use to recreation facility and place of assembly". 58The applicants submit that this amendment is responsive to the development application as lodged and for which consent was granted, and will remove doubt as to the development for which consent was granted. The applicants note the agreement of the planners on the merits of consolidating the use of the site that arises from the previous consents into the current consent, and submit that the proposed amendment would allow this consent to be understood in its proper context, notwithstanding that the operational provisions may be removed and replaced in the current consent. The applicants submit that the 2005 Consent, as drafted by town planners and read by non legally trained people, would be more easily understood. The amendment would also bring the consent into alignment with the terms used in the building certificate and occupation certificate and the classification of the building. 59The Council opposes this amendment, and submits that to allow the description of the development to be changed would defeat the purpose of the 2005 Consent, and allow the venue to be used unrestricted as a place of assembly and recreation facility with no time limitations. 60In my view, the decision of Lloyd J in Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227, and the proposition that a development consent and conditions must be read in a common sense way so as to give effect to the intention of the draftsperson, does not assist the applicants. The effect of condition 6 as proposed by the Council is that there will be one consent dealing with the operational matters relating to the venue, and one consent relating to the physical alterations to the building, namely the 2009 Consent. Retention of the description of the approved development will reflect that position. The entirety of the 2005 Consent as originally granted will remain as an historical document should it become important to understand how the approved uses of the building have changed since it was granted. I am not persuaded that the amendment sought by the applicants should be made.

External lighting 61Proposed condition 10 provides: To maintain safe pedestrian access for people, adequate lighting must be maintained for the duration of night-time events. Temporary lighting for events exceeding 400 people shall be provided to light the footpath in Centennial Circuit to the northern intersection with Bayshore Drive to the required Australian Standard if that is not already occurring. 62The inclusion of the reference to "the northern intersection" with Bayshore Drive clarifies an ambiguity in the Draft Without Prejudice Conditions of Consent (exhibit 8) observed during the hearing, when it was noted that Centennial Circuit has two intersections with Bayshore Drive. 63The applicants oppose the imposition of this condition. The applicants submit that the contributions required under s 94 of the Act as a condition of the 2005 Consent included a contribution for "Civic and Urban Improvements", which, the applicants submit, included identified demand for "increased lighting along Bay Street and town centre areas", and that the payment of the s94 contribution included components of street lighting in town centre areas which must include the Industrial Estate. The applicants submit that if there is a need for increased lighting in the vicinity of the development then the need does not arise because of this development, but because of a lack of existing lighting on the street, and it is not just this development that gives rise to pedestrians and other people using the footpaths and streets as walkways. 64The Council submits that there is a nexus between this development and the need for additional, temporary lighting for large events. 65In considering the competing submissions concerning condition 10, the starting point is s 80A of the Act, in particular s 80A(1)(a), which permits the imposition of a condition if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent. Identification of the nexus between the development authorised by the consent and the proposed condition is required both by s 80A(1)(a) and by the proper application of the tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578, namely that a condition can only be imposed for a planning purpose, must reasonably and fairly relate to the development, and must not be so unreasonable that no reasonable authority could have imposed it: Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Botany Bay City Council v Saab Corporation Pty Limited [2011] NSWCA 308. In Saab, Basten JA, with whom Macfarlan JA agreed, noted (at para [9]) that there may be a question as to how distant, remote or indirect the relationship may be between the proposed development and the matters referred to in s 79C(1). 66There are 16 car spaces on the site, and 24 spaces on Lot 17 which BEC is able to use after 5.30pm. Mr Samuels' evidence was that based on a car occupancy rate of 2.5 persons, the 40 car spaces would lead to a maximum of 100 persons (exhibit 7, p 3). It was not in dispute that for the larger events, patrons will be required to park on the streets of the Arts and Industrial Estate. The applicants commented in their s 82A review request that "grassy walkways" exist throughout the estate, and vehicles can be accommodated "within 200m of the site" (exhibit 3, p 240). It was not in dispute that the area is poorly lit, particularly after hours when other businesses and premises in the area are closed. 67The expert planners agreed (exhibit 6, p 8) that provision of additional lighting is reasonable given the after hours peak pedestrian loads expected between the site and Bayshore Drive, and the need to ensure public safety during these periods, and I accept their evidence. These are relevant factors under s 79C(1)(b) of the Act. The issue is whether there is sufficient relationship between the development and the need for additional lighting for it to be lawful to impose a condition requiring the applicants to provide the required lighting. 68There was no evidence as to whether any other premises in the Arts and Industrial Estate operate into the evening. The traffic counts provided by the expert planners indicate few vehicle movements after 8.00pm on weeknights or 7.00pm on the weekend, which would suggest that any other uses are minimal. I am satisfied that the scale of the large BEC events, with up to 900 for some events, and the likely consequent distances patrons might need to walk after parking their cars, in the context of the public safety concerns identified by the expert planners, mean that the operation of the facility until 1.00am or overnight necessitates the provision of additional street lighting. I agree with the Council that there is a direct relationship between this development and the need for that additional lighting. I am satisfied that it is appropriate and reasonable to require the applicants to provide additional temporary lighting for any events above 400 persons, as provided in condition 10.

Section 88B Instrument 69Proposed Condition 11 provides: A Section 88B Instrument is to be provided to Council indicating the following: Easement of car parking The creation of a suitable easement for the provision 24-car parking spaces on lot 17 DP 812667 for events carried out on lot 16 DP 812667 after 5.30pm on any day. The easement benefits lot 16 and burdens lot 17. Council is to be named as a party from whom approval is required for the removal of any such easement. Should the easement not be provided then the maximum number of people in the building on a daily basis shall not exceed 100 persons. 70The applicants oppose this condition, submitting that an easement has already been provided which burdens Lot 17 for the benefit of Lot 16, and the parking demand generated by the use of the site for the purposes of a recreation facility and place of assembly has been exhaustively assessed and addressed in the earlier consents. The applicants submit that this development is a continuation of those earlier consents and consequently nothing arises that requires the Court to reconsider and revisit these matters. 71The applicants have provided an easement enabling car parking on Lot 17 between 5.30pm to 6.30am in accordance with the requirement of condition 30 of the 2005 Consent (exhibit 3, tab 41). As noted above, that condition did not require that Council be named as a party whose approval would be required to remove the easement. Condition 14 of the 2009 Consent did. The provision of adequate parking has been a factor identified and addressed in all of the previous assessments undertaken for the operation of the site. I accept the evidence of Mr Samuels in his expert report (exhibit 7, p 5) that the availability of on site car parking is limited and critical for this development, and that the Council must have some certainty and control of the provision of on site car parking, irrespective of any change of ownership of either Lot 16 or 17, for the duration of the consent. I agree with the Council that it is preferable, in the interests of certainty, particularly if there is a change of ownership of Lots 16 and 17 which are presently in common ownership, that the Council be specified as a party whose approval is required for removal of the easement. Condition 11 should be imposed as proposed by the Council.

Condition 12 - Certificate of Compliance 72Proposed Condition 12 provides: A Certificate of Compliance under Section 307 of the Water Management Act 200 is to be obtained from Council prior to use of this development consent. 73The applicants submit that this development application does not give rise to any circumstances pursuant to which a Certificate of Compliance under the WM Act can be required. The applicants submit that consideration of the history of the matter indicates that the "water charges" that arise pursuant to this development have already been assessed and paid. 74The Council submits that the use of the site has been changed, and the development application is for an increase in density and in permitted events which were formerly subject to a trial period. The Council submits that there needs to be a Certificate of Compliance for the continuing operation for up to 900 people and the increase in number from 330 to 400. 75Sections 305 and 306 of the WM Act relevantly provide: 305 Application for certificate of compliance (1) A person may apply to a water supply authority for a certificate of compliance for development carried out, or proposed to be carried out, within the water supply authority's area. ... 306 Authority may impose certain requirements before granting certificate of compliance (1) This section applies to such kinds of development as are prescribed by the regulations for the purposes of this section. (2) As a precondition to granting a certificate of compliance for development, a water supply authority may, by notice in writing served on the applicant, require the applicant to do either or both of the following: (a) to pay a specified amount to the water supply authority by way of contribution towards the cost of such water management works as are specified in the notice, being existing works or projected works, or both, (b) to construct water management works to serve the development. (3) In calculating an amount for the purposes of subsection (2) (a): (a) the value of existing water management works and the estimated cost of projected water management works may be taken into consideration, and (b) the amount of any government subsidy or similar payment is not to be deducted from the relevant value or cost of the water management works, and (c) consideration is to be given to any guidelines issued for the time being for the purposes of this section by the Minister. ... 76Clause 224 of the Water Management (General) Regulation 2011 provides: 224 Development that may be subject to section 306 requirements For the purposes of section 306 (1) of the Act, the following kinds of development are prescribed as development to which that section applies: (a) the erection, enlargement or extension of a building or the placing or relocating of a building on land, (b) the subdivision of land, (c) the change of use of land or of any building situated on the land. 77A similar condition to proposed condition 12 was imposed on the 2009 Consent (condition 5). In a letter to the applicants dated 8 April 2010 (exhibit 3,p 263) the Council advised that the charges noted in the 2009 Consent were indicative charges at the time of the issue of the development consent, and increased as of January 2010 to $47,665.70; noted "that the payment of these fees has occurred"; and directed the applicants to the Council website and office for application forms for Certificates of Compliance. The expert planners noted in their joint report that Water and Sewerage Developer Charges had been paid "as evidenced by Council Certificate of Compliance under sec 307 of the Water Management Act 2000 issued on the 12th April 2010". 78That the applicants paid the applicable charges and obtained a Certificate of Compliance in relation to the 2009 Consent, is confirmed by a report by the Council's Principal Engineer Systems Planning in the course of assessment of the present development application (exhibit 3, p346). 79That report notes that BEC had previously been classified and assessed as a Community Centre, and the author notes that the increase in patron numbers (from 900 to 1100) and in the frequency of events, indicated that the site is more suitably classified as Public Entertainment/Function Centre due to the commercial nature of the usage. The water and sewerage loading from that classification would generate an ET load of 14.5. The report calculates the additional water and sewerage load generated by the proposed development, and notes that the previous payment would be credited towards the 9.96 ET required. 80There was no evidence, or submissions, challenging that basis of consideration of water and sewerage charges as part of the assessment of the present development application. While there have been some agreed changes to the details of the proposed development since that assessment, in particular the agreement of the applicants to a maximum of 900 persons rather than 1100 as originally sought, the agreed amendments have resulted in an increase in hours of operation, number of patrons, and frequency of events, when compared with the earlier consent. As discussed above, the approved events could, with appropriate conditions, also include four large overnight events. 81I agree with the Council that these changes represent a change of use of the building so that s 306 of the WM Act applies. Further, adopting the reasoning of the Principal Engineer Systems Planning, it is likely that an additional water and sewerage load would be generated, and based on that report there is no reason to expect that any calculation based on the actual approved hours, frequency and numbers would not also take into account any amounts previously paid. 82Condition 12 should be imposed as proposed by the Council.

Condition 13 Developer Contributions 83Condition 13 requires payment of developer contributions under s 94 of the Act, levied in accordance with the Byron Shire Council Section 94 Development Contribution Plan 2005 dated June 2005 and Byron Shire Council Section 94 Development Contribution Plan 2005 Amendment No 1 dated 20 July 2005 for Community Facilities, Open Space, Roads, Car Parking, Cycleways, Civic & Urban Improvements, Shire Support Facilities and Administration (the 2005 s 94 Contributions Plan). The Schedule of Contributions provided with the Draft Without Prejudice Conditions of Consent include the amount of $45,768.59 for Roads (53.52 trips @ $855.17), $0 for Civic and Urban Improvements, and $851.37 for Administration (1.00 SDU @ $851.37), totalling $46,619.96. 84I note that the 2005 s 94 Contributions Plan has been replaced by the Byron Shire Developer Contribution Plan 2012 which came into effect on 1 January 2013. That plan (exhibit 5) does not apply to a development application lodged prior to its commencement but not determined (cl 2.23). I agree with Mr Soulsby that the applicable plan for this application is the 2005 s 94 Contributions Plan. 85The applicants submit that s 94(1) of the Act requires that there be an increase in demand for the public services and facilities that are the subject of the developer contribution; that there is no net demand generated by this development; and that there is no basis on which s 94 contributions can be levied. The applicants further submit that the Court would be reluctant to require a further contribution, because to do so would be unreasonable in the particular circumstances of this case. The applicants rely on the evidence of Mr Lonergan, who notes that the applicants paid s 94 contributions under the 2005 Consent on 28 September 2005, for events of up to 1,100 people 8 times per year, 330 persons on any day subject to time restrictions, and general daily 100 person events. In his opinion there does not appear to be a nexus between the reduction in approved numbers on the proposed consolidated consent, and any "likely to require the provision of or increase the demand for public amenities and public services within the area" as required by s 94(1). 86The Council submits that the calculation is based on increased demand. Mr Soulsby in his evidence notes that contributions were paid under the 2005 Consent, levied in accordance with the 2001 s 94 Contributions Plan which identified vehicle generation as the basis for levying contributions. However, Mr Soulsby states that in the determination of the 2005 Consent the Council did not correctly apply this plan based on trip generation, and the levies were calculated on a worker population basis for the conversion from industrial to commercial, which was an erroneous application of the plan. Mr Soulsby used the contributions as levied under the 2005 Consent as the baseline to determine whether the present development application generates an increase in the demand for public facilities. Mr Soulsby stated that Council does not charge for temporary events as the demand cannot be said to be permanent, and the events of up to 1,100 people were excluded from the calculation of increased demand between the 2005 Consent and the proposed uses in the present application. Mr Soulsby provided a statement of his calculation of the total increase in trips (Annexure C, exhibit 6). 87The 2005 Consent required payment of a total of $13,426.20, being $9,903.92 for Roads, $2,074.51 for Civic & Urban Improvements, and $1,447.77 for Administration. The only explanation of how those contributions were calculated in the documentary evidence before the Court comes in the Evaluation Report assessing the development application for the 2005 Consent (exhibit 3, tab 2), which states that the change in use from industrial to a commercial development (recreation facility) generates additional s 94 contributions. 88The assessment of development application DA10.2007.415.1 commented (exhibit 3, p 207) in relation to section 94 Contributions "Not applicable". That comment is repeated in the assessment undertaken for the s 82A review leading to the 2009 Consent (exhibit 3, p 241). There is no explanation in the documentary evidence before the Court as to the basis for that conclusion. 89The report provided to the Council on 9 May 2013 assessing the present development application noted (exhibit 3, p 377) that "staff are already accounted for and paid for in DA 10.2004.255.1 for the purposes of all contributions excepting traffic and administration. Only contributions for Traffic and Administration are appropriate for this consent". 90Section 94(1) of the Act requires that the consent authority be satisfied that the proposed development "will or is likely to require the provision of or increase the demand for public amenities and public services within the area". Section 94B(1) provides that the consent authority may impose a condition requiring payment of a monetary contribution only if it is of a kind allowed by, and determined in accordance with, a contributions plan. While the evidence before the Court does not provide precise details as to how the s 94 contributions for the 2005 Consent were determined, the comment in the Evaluation Report relating to the change of use from industrial to commercial, and the subsequent statement in the report of 9 May 2013 that "staff are already accounted for and paid for", support the evidence of Mr Soulsby that the 2005 Consent calculation was undertaken on a worker population basis. His evidence that Council does not charge for temporary events so that events of up to 1,100 people were excluded from the calculation of increased demand in the 2005 Consent was not challenged. Based on this evidence, I accept the approach adopted by Mr Soulsby, which was to identify the increase in trips per day between the 2005 Consent and the present application based on the maximum number of persons and event numbers, and to apply the provisions of the 2005 s 94 Contributions Plan, based on two trips per vehicle and an occupancy rate of three persons per vehicle, for the increase from 330 to 400 for place of assembly occasional special events, and a net increase of 500 persons for place of assembly large evening events. Mr Soulsby's calculations did not identify any increase in trips from the net increase of 800 persons during the day and 500 persons at night for place of assembly large events with bus transport. 91The 2005 s 94 Contributions Plan is in evidence (exhibit 4), and states (Table 2.4) that where a proposal is for development other than residential development, contributions for roads will be based on the number of daily trips generated by the development multiplied by the per trip contribution rate, which is $750.23 per trip under Table 2.3 for the Byron Bay/Suffolk Park area. 92I accept that Mr Soulsby's approach of using the 2005 Consent as the baseline, despite his conclusion that the contributions were erroneously calculated, and to base his calculations on an identified increase in vehicle trip generation from the place of assembly occasional special events and place of assembly large evening events, represents a fair approach to adopt in the circumstances. That approach is consistent with s 94(1) in identifying the increased demand, and applies the provisions of the 2005 s 94 Contributions Plan to that increased demand. The applicants' approach of relying on the contributions paid under the 2005 Consent does not reflect the increase in the number of events and number of patrons permitted on a permanent basis approved in the present application, and thus the likely increase in demand for public amenities. 93Condition 13 should be imposed as proposed by the Council. Mr Soulsby's Annexure C to the joint report calculated an additional 55.57 trips. The Schedule in the Council's proposed conditions calculates the contributions based on 53.52 trips. The Section 94 Development Contributions Schedule should be recalculated to reflect the changes in condition 2(b) as agreed between the parties and approved by the Court.

Conclusion 94I am satisfied that it is appropriate to grant development consent to DA 10.2012.583.1 subject to the conditions as agreed between the parties, and including consent for up to four large overnight events, subject to the imposition of conditions 6, 10, 11, 12 and 13 as proposed by the Council; and subject to an additional condition restricting entry to the large overnight events as discussed in paragraph [55] above, and confirmation of the calculation of the Section 94 Development Contributions Schedule. 95The parties are directed to provide an agreed condition reflecting the proposed restriction on entry to the large overnight events, and the Section 94 Development Contributions Schedule, by 6 September 2013, following which orders will be made in chambers. Linda Pearson Commissioner of the Court 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. Decision last updated: 29 August 2013