Mambrooke Pty Limited ATF Mambrooke Trust v Byron Shire Council

Representation: Counsel:
R Lancaster SC (Applicant)
R White (Respondent)
Solicitors:
Mills Oakley (Applicant)
Madison Marcus Law (Respondent)

File Number(s): 2025/00158201

Publication restriction: No

JUDGMENT

1. COMMISSIONER: Development Consent No. 10.2024.63.1 was granted on 2 October 2024 for the demolition of existing structures and construction of a new dwelling house at 19 Marine Parade, Byron Bay (Lot 2 in DP 244699) (the site). This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the deemed refusal of Modification Application No. 10.2024.63.2, to increase the size of the basement and provide stair and lift access from the basement to the approved dwelling house (the proposal), by Byron Shire Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 27-28 November 2025. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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.

3. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. There are preconditions to the exercise of power to modify a development consent.

Amended application

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (NSW). The plans and supporting documents comprising the amended application are listed under condition 1 of the consolidated conditions of consent at Annexure B.

Pre-conditions to the grant of consent

Environmental Planning and Assessment Act 1979 (NSW) s 4.55(2)

5. I am satisfied that the proposed modified development is substantially the same as the development for which consent was originally granted, pursuant to s 4.55(2)(a) of the EPA Act. The changes to the original development proposed by the modification application are to augment the basement garage and provide stair and lift access from the basement to the approved dwelling. The modification application increases the volume of excavation. The use of the development is the same, the number of bedrooms, storeys, maximum height and parking spaces is the same, the building envelope is substantially the same and there are no additional amenity impacts on neighbouring properties.

Coastal Management of State Environmental Planning Policy (Resilience and Hazards) 2021

6. Chapter 2 Coastal Management of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) applies to the proposal as the site is on land mapped as proximity area for littoral rainforest (s 2.8), coastal environment area (s 2.10); and coastal use (s 2.11). Chapter 2 of SEPP Resilience and Hazards aims to manage and guide decision making in relation to development in the coastal zone and protect the environmental assets of the coast.

7. Section 2.8 of the SEPP Resilience and Hazards provides that a consent authority must not grant development consent to development on land that is identified as "proximity area for littoral rainforest" unless satisfied that the development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent littoral rainforest, or significantly impact on the quantity and quality of surface and ground water flows. I am satisfied that the modified development will not have significant impacts on the matters listed under s 2.8 of SEPP Resilience and Hazards based the conclusions of the ecological statement prepared by AWC dated 28 October 2025 and the joint report of the geotechnical experts, as follows:

8. The proposed piling walls will be infilled with shotcrete and then likely dressed so that they are impermeable to groundwater flows.

9. Based on groundwater measurements, permanent groundwater is likely around

10. It is possible that shallow perched groundwater occurs intermittently following extended rainfall or during wet seasons. The ’perched groundwater flows across the site in a northerly direction and would not come from or go towards the littoral rainforest. Any redirection of these flows, or permanent groundwater obstructed by the piles, would not likely interfere with groundwater systems within the littoral rainforest.

11. The site is located in a different surface water catchment to the littoral rainforest, which is approximately 4m east of the site. The quantity or quality of surface water flows to and from the littoral rainforest will therefore not likely be impacted by the development as modified.

12. The geotechnical experts agreed that the basement excavation and permanent shoring system is not likely to impact on groundwater flows to or from the nearby littoral rainforest nor will there be adverse effects upon adjoining properties as a result of any changes in groundwater flow patterns.

13. Additionally, the development as modified will be limited to an urban lot with existing and approved residential development. It is unlikely that the proposed extension of the approved basement will significantly impact the ecological integrity of the littoral rainforest.

14. Section 2.10 of SEPP Resilience and Hazards provides that a consent authority must not grant development consent to development on land within a "Coastal Environment Area", unless it has considered whether the development will likely cause an adverse impact on certain items, and is satisfied that the development is designed to avoid any adverse impacts. I am satisfied that the development, as modified, will not have significant impacts on the matters listed under s 2.10 of SEPP Resilience and Hazards based the conclusions of the ecological statement prepared by AWC dated 28 October 2025 and the joint report of the geotechnical experts, as follows:

15. The basement excavation and permanent shoring system is not likely to impact on groundwater flows.

16. The development, as modified, will not have an adverse impact on native vegetation and fauna, and their habitats, and/or coastal environmental values.

17. A condition of consent is imposed to ensure that any surface or groundwater discharged from the site during the construction phase will need to be treated so as not to degrade the quality of waters in the marine estate to the north.

18. The development, as modified, will not impact existing access to and along the foreshore or beach.

19. The site is not identified on the Aboriginal Cultural Significance Map and therefore is unlikely to adversely impact cultural heritage, practices or places.

20. The development, as modified, will not adversely impact the use of the surf zone.

21. Section 2.11 of SEPP Resilience and Hazards provide that a consent authority must not grant development consent to development on land within a "Coastal use area", unless it has considered whether the development will likely cause an adverse impact on certain items, and is satisfied that the development is designed to avoid any adverse impacts. I am satisfied that the development, as modified, will not have significant impacts on the matters listed under s 2.11 of SEPP Resilience and Hazards based the conclusions of the ecological statement prepared by AWC dated 28 October 2025 and the joint report of the geotechnical experts, as follows:

22. The development, as modified, will not impact existing access to and along the foreshore or beach.

23. The development, as modified, will not cause overshadowing, wind funnelling or loss of views from public places to foreshores noting the proposal is largely contained within the approved basement.

24. The development, as modified, will not adversely impact visual amenity and scenic qualities of the coast noting the changes, the subject of the modification application, are largely contained within the approved basement.

25. The site is not identified on the Aboriginal Cultural Significance Map and therefore is unlikely to adversely impact cultural heritage, practices or places. It is also noted that the development, as originally approved, is subject to a condition requiring works to cease in the event that a relic or Aboriginal object is unexpectedly found (condition 57 of the original consent).

26. The development, as modified, will not adversely impact cultural and built environment heritage.

27. The development, as modified, is consistent with the approved building envelope of the originally approved dwelling, and is consistent with the surrounding coastal and built environment.

28. Pursuant to s 2.12 of SEPP Resilience and Hazards, the modification application is accompanied by a number of geotechnical and construction management documents. As set out in the geotechnical experts’ joint report, the following is agreed:

29. The geotechnical investigation undertaken is sufficient to characterise site geotechnical conditions for assessment purposes.

30. The proposed Shoring Design and Construction Staging Plan are of sufficient detail to demonstrate that the excavation and basement can be safely constructed provided that an experienced contractor, supervised by an experienced geotechnical and structural engineer, undertakes the works with vibration and displacement monitoring during the construction phase.

31. The Finite Element Model analysis in the FEM Memo demonstrates that the Shoring Design and Construction Staging Methodology will lead to some movement on the adjoining land to the east. However, if the works are constructed as proposed, and the assumptions made in the modelling remain valid as the works progress, then the anticipated displacements at the adjoining dwelling will be negligible.

32. The excavation methodology reported at Section 5 of the Structural Report is appropriate.

33. Pursuant to s 2.13 of the SEPP Resilience and Hazards, there is no certified coastal management program that applies to the site.

34. Section 4.6 of SEPP Resilience and Hazards requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. The site has historically been used for residential purposes. There is no known history of contamination applicable to the site and no known prior use of the property which would suggest potential contamination. The assessment of the original development application concluded that the site is suitable for the development. Accordingly, contamination is unlikely, and no further investigation is required.

Byron Local Environmental Plan 2014

12. The site is zoned R2 Low Density Residential pursuant to the Byron Local Environmental Plan 2014 (LEP 2014). The relevant objective of the zone, to which regard must be had, is, “To provide for the housing needs of the community within a low density residential environment.” The development, as modified, is consistent with this objective.

13. The modified development is the same maximum height as the original development for which consent was granted, being under the height of buildings development standard of 9m for the site (cl 4.3 of LEP 2014).

14. The floor space ratio (FSR) development standard for the site is 0.4:1 (cl 4.4 of LEP 2014). The FSR of the development as modified, is 0.398:1.

15. Clause 6.2 of LEP 2014 Earthworks applies to the proposal. The proposed earthworks are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The modification application includes a suite of material in relation to geotechnical impacts and proposed earthworks. The parties' experts agree that the development is unlikely to have an adverse impact on drainage patterns, soil stability or impact on adjoining properties. Conditions of Consent are proposed to minimise and mitigate impacts of earthworks. To the extent that the development is to avoid, minimise or mitigate impact of the earthworks in its design, it is noted that the proposed development has been designed to reduce the amount of excavation and minimise impact. I am satisfied that the matters set out in this clause have been considered and that appropriate measures to avoid or minimise the impacts of the development have been imposed.

Conclusion

16. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 28 November 2025 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.

Orders

17. The orders of the Court are:

18. The appeal is upheld.

19. Development Consent 10.2024.63.1 is modified in the terms set out at Annexure A.

20. Development Consent 10.2024.63.2, for the demolition of existing structures and construction of a new dwelling house at 19 Marine Parade, Byron Bay is modified in the terms set out in the consolidated conditions of consent at Annexure B.

Susan O’Neill

Commissioner of the Court

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Annexure A.181 KB.pdf

Annexure B.380 KB.pdf