Master Alchemy Pty Ltd v Byron Shire Council

Land and Environment Court (NSW)|2024-06-25|Before: Ex J

JUDGMENT

The applicant has appealed against Byron Shire Council's refusal of its development application (DA 10.2022.518.1) for the demolition of an existing dwelling and construction of 2 x two-storey dwellings with basement car parking and a pool facing 50 Shirley Street, Byron Bay (site).
The appeal, made pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 24 June 2024. As agreement was not reached, the conciliation conference was terminated, and as required by s 34AA(2)(b) of the LEC Act the matter proceeded to hearing the next day in Sydney. The parties have consented to the admission of evidence given during the conciliation conference including the heritage experts' evidence taken onsite (Ex J).
While the Council's Amended Statement of Facts and Contentions (ASOFC) has raised several issues in respect of the new development, the first issue is the proposed demolition of the existing dwelling which stands within the Shirley Street Heritage Conservation Area (HCA).
The Council contends on the evidence of its heritage consultant, Ms Deborah Wray, that the existing dwelling should be retained because it contributes to the heritage significance of the Shirley Street HCA under Sch 5 of the Byron Local Environmental Plan 2014 (LEP). The Council further maintains that the demolition of the existing dwelling does not satisfy the objectives of cl 5.10 "Heritage Conservation" of the LEP nor the relevant controls in Chapter C1 "Non-Indigenous Heritage" of the Byron Shire Development Control Plan 2014 (DCP). It also contends that demolition does not "avoid an adverse impact on the built environment heritage" as required by s 2.11 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP).
The applicant contends the retention of the existing dwelling is not protected by the above controls because the existing dwelling is not consistent with the Statement of Significance and the physical description of the buildings that constitute the Shirley Street HCA. It relies on the evidence of its heritage expert, Mr Graham Hall, who in disagreeing with Ms Wray, goes as far as to describe the existing dwelling as a "pretentious fake" with "…no architectural integrity" (Ex 4 p 20). Mr Hall supports the application for demolition and the new build.

Decision

For the reasons that follow, I have determined to refuse consent and dismiss the development application.

Evidence

The ASOFC describes the site as a rectangular lot with an area of 1012m2. It has a northern boundary to Shirley Street, which is a classified road (MR545), and a southern boundary to Shirley Lane. Both frontages are 20.117m wide.
On the southern boundary of the site facing Shirley Lane, the Council has approved the construction of two x 2-storey dwellings with two swimming pools to create a multi dwelling housing development comprising three dwellings on the site (DA 10.2021.275.1 (DA 2021)). Relevantly, conditions 5 and 6 of that consent require the retention and repair of the existing dwelling house at the Shirley Street frontage (being the third dwelling in the approved development). As this application proposes the demolition of the existing dwelling, an approval of its demolition in these proceedings will require the deletion of conditions 5 and 6 of DA 2021. It is to be noted that this southern boundary development is near completion.
The existing dwelling on the northern boundary is an original single storey elevated dwelling house behind a low brick fence, with vehicular access from Shirley Street to a single internal garage. This existing dwelling is setback approximately 6m at its closest point to the front boundary and is agreed to have been built around 1952.
It is accepted that the existing dwelling falls outside the "key period" (1920 -1950) identified in the State Heritage Inventory for the Shirley Street HCA (Ex 4, p 10). The listing states: "A group of dwellings within the area defined by Wordsworth Street to the east, Shirley and Cavanbah Streets to the north, Kendall Street to the west and Byron Street to the south. Building materials, (weatherboard, original timber stumps, sharply pitched corrugated iron roofs, bricked chimneys and fireplaces, fenestration styles), building layouts, whether for use as dwellings or for public use, setbacks from the street, property size, access to properties, boundary fences, features of public landscaping (species and style of planting) and driveway constructions are consistent within the period 1920 - 1950." (Ex 4 p 4)
The Statement of Significance for this HCA in the State Heritage Inventory 126030 dated 2005 describes the area in the following terms: "A group of dwellings and public buildings, rear lanes, street trees and landscaping which, taken together, illustrate a pattern of settlement in Byron Bay of distinctive character. The area contrasts strongly with the modern beachside developments on the eastern side of Shirley Street, although the two areas are unified by the striking avenue of mature Norfolk Island pine trees."
The extent of the Shirley Street HCA is outlined in red below:
While the term "heritage conservation area" is defined in the LEP there is no fine-tooth analysis of the particular buildings in the Shirley Street HCA such as to ascribe a grading of "Contributory item", "Neutral/Infill or "Intrusive" - which is often employed in DCPs to help guide where redevelopment is likely to be supported and where conservation is appropriate.
In the absence of the definition of contributory items, the heritage experts agreed that the development proposal must be considered with reference to the assessed significance set out in the State Heritage Inventory for the Shirley Street HCA and the Byron Shire Community-Based Heritage Study 2007. However, they rely on different authorities for the purpose of understanding and interpreting the HCA.
Ms Wray has applied the criteria advanced by Dirk Spennemann in his academic paper published by Heritage (13 July 2023). [1] In addressing the lack of definitions and common criteria in the assessment of heritage conservation areas and contributory items, Mr Spennemann has crafted definitions which Ms Wray suggests local councils can adopt or adapt. If applied, she is of the opinion that the subject dwelling would be consistent with a Contributory Item Class 1 as follows: "any building, work, tree or place and its setting which clearly reflects a key period of significance for the heritage conservation area and that forms a key element of the collective cultural heritage asset base of the heritage conservation area. This item retains its overall form as built during the key period of significance without additions or alterations visible from the street that are not congruent with the key period of significance. A key criterion is what the item offers to the streetscape or character of the heritage conservation area. As a result, the focus for a contributory item class 1 is how the item appears in the public domain, and especially from the street." [2]
Against that criteria and her consideration of the Statement of Significance for the Shirley Street HCA, Ms Wray gave evidence that the existing dwelling, built in 1952, contributes to this HCA because it demonstrates the historical development in the early post-war period in Byron Bay. She advocates for the retention of examples of domestic architecture from different eras within the HCA and identified this existing dwelling's importance for its curved corners, round port hole windows, glazing proportions and the timber sash windows which emulate the "Waterfall" and "P" and "O" Liner design elements associated with post-war freedom and optimism etc (Ex 4 p 16). She also endorses the retention of the building because of its historic association with local business families. She describes it as part of a collective of dwellings which Ms Wray argues contributes to the aesthetic significance of the Shirley Street HCA being representative of a departure from the weatherboard and iron materiality and design of traditional timber cottages.
Ultimately, Ms Wray gave evidence that the existing dwelling's contribution rested upon on its unique representation of the last phase of the development of the Shirley Street HCA. A "rare" example of domestic architecture being the only two-storey height 1950s building of this design in the HCA.
Relying on the publication "Conservation Areas" by Heritage Office, and Department of Urban Affairs and Planning 1996 (Ex 4 p 3) and the Court's planning principle in Helou v Strathfield Municipal Council (2006) 144 LGERA 322; [2006] NSWLEC 66 (Helou) which defines "contributory item" at [44] as: "…a building that is not individually listed as a heritage item, but by virtue of age, scale, materials, details, design style or intactness is consistent with the conservation area, and therefore reinforces its heritage significance". Mr Hall assessed the significance - the contributory value - of the dwelling against the Statement of Significance and the physical description in the State Heritage Inventory to reach the conclusion that the existing dwelling makes no contribution to the Shirley Street HCA.
Mr Hall believes that the existing dwelling was originally a traditional timber "Queenslander" (Ex B) but today is best described as "a larger than average single storey fibro and tile post war austerity cottage elevated on posts". He considers the existing dwelling to be distinguished by its materials and detailing from "…the single storey weatherboard and corrugated iron cottages" identified for conservation in the Shirley Street HCA. In his evidence, Mr Hall references the fact that the existing dwelling does not satisfy the criteria set out in the State Heritage Inventory relevant to the HCA, nor fall within the relevant timeframe of 1920 -1950s; and concludes that there is no heritage value in the dwelling (Ex 4 p 11). He sees it as no more than a timber-framed dwelling, with curved corners and clad in fibro with no architectural integrity (Ex 4 p 19). And, insofar as Ms Wray's evidence amplifies the uniqueness of the existing dwelling in the area Mr Hall argues that this only further justifies his conclusion that the existing dwelling does not reference or contribute to the heritage value of the HCA. He disagrees with Ms Wray's evidence that buildings which do not have the identified significant characteristics of the conservation area (an atypical house), but demonstrate aspects of the area's history should be conserved. Mr Hall believes that the extension of the protection of the HCA to items that are not contributory is inequitable, and inconsistent with the work that was undertaken to identify the HCA to protect it by the community-based heritage study in 2007 which led to the listing of the Shirley Street HCA. The study, coordinated by Dr Donald Ellesmore, identified the HCA as significant because of the preponderance of 1920-1950 weatherboard and corrugated iron cottages. He is also of the opinion that inclusion of this dwelling obscures the important historical characteristics of the HCA as it seeks to preserve something that is not sufficiently important to the history of the area. And in respect to aesthetic value, Mr Hall is of the view that the existing dwelling is a "mock replication" (Ex 4 pp 14-20).

The locality

At the site view, I was able to observe the pattern of subdivision in the surrounding locality. The aerial photograph of the site below (outlined in blue) assists understanding the surrounding development.
The area contains a mixture of residential uses (predominantly dwelling houses) on the southern side of Shirley Street, and medium density housing and tourist uses (multi dwelling housing, serviced apartments, and motels) on the northern side of Shirley Street. The immediate streetscape encompasses the established Norfolk Pine Avenue plantings, a Tuckeroo, and grassed verges.
Focussing on the southern side of Shirley Street and the entire road reserve (containing the grassed verges and Norfolk Pine Avenue plantings on both sides of the street) that is the HCA identified in Sch 5 of the LEP, I observed several modest single storey, traditional timber clad, hipped and gabled roofed cottages - including the properties on the eastern and western boundaries of the site. There were also fibro cement clad dwellings, and larger infill developments addressing Shirley Street and Shirley Lane. Some of the infill two-storey developments along the Shirley Street frontage were approved prior to the introduction of the Shirley Street HCA, and associated planning controls, but not all of them. The developments at 42 Shirley Street and 25 Shirley Lane are also two storeys and recent approvals.
However, it is to be noted that there are no basement car parks on the southern side of Shirley Street within the HCA. Vehicle access along the southern side of Shirley Street remains with minimal interruption to the street frontages and parking generally incorporated at the side or to the rear of dwellings behind the avenue of listed Norfolk Pine trees.
For completeness, I note that the site is subject to flooding with current flood levels detailed in the Belongil Creek Flood Risk Management Plan (BMT WBM March 2015). There is a cross fall sloping down to Shirley Lane of approximately 1.13%. The site is also located within the Coastal Erosion Hazard Area on the Byron Bay Coastal Hazards Map under Chapter E5 of the DCP, and mapped as having acid sulphate soil - Class 3 and Class 5 on the Acid Sulphate Solis Map under the LEP. The site is also identified as bushfire prone land and mapped "vegetation buffer" under the gazetted bushfire mapping certified by the NSW Rural Fire Service on 12 July 2022.

Byron Local Environmental Plan 2014 (LEP)

The site and adjacent properties on the southern side of Shirley Street are within Zone R2 Low Density Residential pursuant to the provisions of the LEP. The northern side of Shirley Street opposite the site is in Zone R3 Medium Density Residential.
The objectives of the Zone R2 Low Density Residential are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Development for the purposes of a "dual occupancy (attached)" and "multi dwelling housing" is permissible with consent in Zone R2.
The terms "multi dwelling housing" and "dual occupancy (attached)" are defined as follows in the LEP: dual occupancy (attached) means 2 dwellings on one lot of land that are attached to each other but does not include a secondary dwelling. multi dwelling housing means 3 or more dwellings (whether attached or detached) on one lot of land, each with access at ground level, but does not include a residential flat building.
Relevantly, Section 1.6.11 in Chapter D1 of the DCP contains the following objectives, performance criteria and prescriptive measures concerning density in multi dwelling housing developments: "D1.6.11 Density Objectives 1. To ensure that medium density housing development, including multi-dwelling housing (including Manor Houses and Terraces) and attached dwellings are compatible in bulk and scale with development in the locality and is consistent with objectives of the zone. 2. To enable a variety of housing types within the Shire. Performance Criteria 1. To provide a range of housing options that are compatible with locality that is suitable within the Low Density Residential Zone. Prescriptive measures 1. Multi-dwelling housing and attached dwellings within the R2 Low Density Residential Zone are to have a maximum of 3 dwellings per 1000m2 of lot size. Any additional dwellings require a site area of 333m2 per dwelling. Prescriptive measure one for this part does not apply if the proposal includes the provision of affordable housing."
The proposed development, if implemented concurrently with the development approved under DA 2021, will result in there being a multi dwelling housing development containing four dwellings on one lot that is 1,012 m2 in area, which is not consistent with the prescriptive measures in Section D1.6.11 in the DCP.
For that reason, the Council contends that the density of the development is not consistent with the low-density residential character, bulk and scale of the locality, and is contrary to the objectives and performance criteria in Section D1.6.11 of the DCP.
The site is subject to a maximum height of buildings of 9m pursuant to the Height of Buildings Map referred to in cl 4.3 of the LEP and the proposed development is 9m.
The site is subject to a maximum floor space ratio of 0.5:1 pursuant to the Floor Space Ratio Map referred to in cl 4.4 of the LEP and is compliant.

Consideration

As the Council identified in closing, there are four fundamental issues raised by the application. The first one is the effect of the proposed demolition of the existing 1950s dwelling on the heritage significance of the Shirley Street HCA (Tcpt, 19 July 2024, pp 33(49)-34(2)); and the effect of the erection of the new building on the heritage significance of the Shirley Street HCA.
The second is whether the proposed development is likely to cause an adverse impact on the built environment heritage of the Shirley Street HCA, and whether the new development will retain and complement the character and the significance of the HCA. In that regard, the Council is particularly critical of the proposed basement car park and ramp, the building's setbacks and the spatial arrangement and the removal of the existing landscape setting.
Thirdly, the proposed development's non-compliance with the specific controls in the DCP relating to density, the building height plane, and the side and front setbacks (Tcpt, 19 July 2024, p 34(12-15)).
Lastly, the failure in the design of the driveway ramp to provide the minimum site triangle area required for pedestrian safety as set out in the DCP, which adopts the Australian Standard, and seeks to provide a 2m x 2.5m area within the site, clear of obstruction to provide visibility for the driver of the vehicle.
Dealing first with the issue of demolition of a building in this HCA, it is useful to set out the main provisions in the LEP and SEPP.
Clause 5.10 of the LEP provides: 5.10 Heritage conservation Note - Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5. (1) Objectives The objectives of this clause are as follows - (a) to conserve the environmental heritage of Byron, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, (c) to conserve archaeological sites, (d) to conserve Aboriginal objects and Aboriginal places of heritage significance. (2) Requirement for consent Development consent is required for any of the following - (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance) - (i) a heritage item, (ii) an Aboriginal object, (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, (d) disturbing or excavating an Aboriginal place of heritage significance, (e) erecting a building on land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance, (f) subdividing land - (i) on which a heritage item is located or that is within a heritage conservation area, or (ii) on which an Aboriginal object is located or that is within an Aboriginal place of heritage significance. (3) When consent not required However, development consent under this clause is not required if - (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development - (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or (b) the development is in a cemetery or burial ground and the proposed development - (i) is the creation of a new grave or monument, or excavation or disturbance of land for the purpose of conserving or repairing monuments or grave markers, and (ii) would not cause disturbance to human remains, relics, Aboriginal objects in the form of grave goods, or to an Aboriginal place of heritage significance, or (c) the development is limited to the removal of a tree or other vegetation that the Council is satisfied is a risk to human life or property, or (d) the development is exempt development. (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6).
Relevantly, cl 5.10(2)(a)(iii) provides that development consent is required to demolish a building within a heritage conservation area.
The matters that a consent authority must consider before granting consent under cl 5.10 are set out in subcl (4) namely: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a ... heritage conservation area, consider the effect of the proposed development on the heritage significance of the ... area concerned.
The relevant heritage controls are further refined by the provisions in Chapter C1 of DCP in relation to non-Indigenous heritage as detailed in the SOFC at pp 7, 11, 13 and 14.
Section 2.11 of the RH SEPP also applies to the site because the property is located with the coastal use area. Section 2.11 states as follows: 2.11 Development on land within the coastal use area (1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority - (a) has considered whether the proposed development is likely to cause an adverse impact on the following - … (v) cultural and built environment heritage, and (b) is satisfied that - (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
Subsection 2.11(1)(a) of RH SEPP requires a consent authority to consider whether the proposed development is likely to cause an adverse impact on various things - including the cultural and built environment heritage.
If there is an adverse impact on the cultural and built environment heritage that the proposed development would cause, then the Court needs to form a positive opinion of satisfaction in respect of the matters identified in s 2.11(1)(b). It needs to be satisfied that: (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact…
The Council's case is that there will be an adverse impact on the built environment heritage of this particular HCA and that there has been no attempt to avoid that impact. It argued that the development fails in the first test because there is an ability to reasonably avoid the impact.
In addressing cl 5.10, the Council emphasises the objective identified in subcl (1)(b) which is to conserve the heritage significance of heritage items and heritage conservation areas, including their associated fabric settings and views. It submits that the clause requires consideration to be given to the effect of the proposed development in the context of that particular objective. The Council noted cl 5.10 is supplemented by Chapter C1 "Non-Indigenous Heritage" of the DCP, which specifically deals with demolition and specifies the matters to be assessed when assessing demolition of relevantly a building of a heritage conservation area. Five matters are specified for consideration:

the heritage significance of the item;
the structural condition of the item,
comparative analysis of the item in relation to other items,
the contribution the item makes to the streetscape or precinct, and
the design and suitability of the proposed replacement development.

As previously mentioned, Ms Wray gave evidence that the retention of the existing dwelling and original low brick fence is required to satisfy the objectives in cl 5.10 of the LEP, and the avoidance, minimisation and mitigation of impacts required to be demonstrated under the RH SEPP (Ex 2 Tab 15; Ex 4). She believes that the existing dwelling demonstrates the historical development of Byron Bay in the immediate period following WWII and contributes to the aesthetic character of the Shirley Street HCA through its design elements, setbacks, spatial and landscaped setting, and associated low fence typical of the era. It is in her words "a rare example of its type and era within the Shirley Street HCA and is of a modest size and standard which predates current domestic architecture by 70 years".
Ms Wray believes that the demolition of the existing dwelling and low brick fence will have an adverse impact on the historical and aesthetic significance and rarity of the Shirley Street HCA (NSW State Heritage Register criterion a, c & f). She maintains that the development will have a negative impact on built environment heritage which can be reasonably avoided if the existing dwelling and low brick fence are retained, considering the surrounding coastal and built environment heritage, and the bulk, scale and size of development in the Shirley Street HCA. Particularly, given that restoration and sympathetic alterations and updates to the dwelling are permissible under the provisions of the LEP.
Ms Wray also believes that the proposed development conflicts with the policy stated in DCP Chapter C1 "Non-Indigenous Heritage" requiring single storey development within heritage conservation areas, and elements such as 1.2m front fencing and car parking and driveways that retain and reflect the character and established patterns and visual setting in the streetscape. To her mind, the design of the replacement dwellings is not harmonious with the overall existing built and landscaped character and the adjoining modest single storey traditional dwellings within the Shirley Street HCA. In particular, the buildings' bulk, site coverage, reduced setbacks, uncharacteristic and dominant access to basement parking, fencing and the removal of mature landscaping.
In short, her evidence is that the design of the replacement building is not suitable and this is a relevant consideration under C1.2.2.3 of the DCP which weighs against demolition.
Insofar as demolition is proposed, Mr Hall's evidence is that there is no heritage significance in the existing dwelling.
He is strongly of the opinion that in circumstances where the building is inconsistent with the Statement of Significance and physical description of the buildings that constitute the HCA, it is not protected by the controls. In acknowledging that the existing dwelling was built outside the relevant period of 1920-1950. Mr Hall gave evidence that the precise date is not crucial. He contends that the significance of the HCA is based on the common characteristics of workers' housing between the wars and the early post-war period as detailed in the State Heritage Inventory. As Mr Hall explained in his written evidence, the austerity style houses of the immediate post-war period had many characteristics in common with the small interwar houses in the area apart from the common use of asbestos cement wall cladding; and consequently the streetscape remained coherent. However, in the 1950s, the post-war housing shortage eased and a greater range of building materials became available, and a diversity of individual and individualistic designs emerged. These began to erode the coherence of the area, and the visual evidence of its history as a working-class area, which are the basis of its significance. The existing dwelling, in his view, is one such individualistic example (Ex 4 pp 13-14).

Findings - Heritage

Clause 5.10 expressly permits the demolition of heritage items; buildings and works within a heritage conservation area with consent (cl 5.10(2)(iii)). In determining demolition, I must consider the matters raised in cl 5.10(4).
In this case, for the reasons outlined by Mr Hall and based on my own observations I accept that the building's design and materials are not consistent with those features identified as significant in the HCA (Ex 4 p 5).
Clause 5.10(4) requires my consideration of "the effect of the proposed development on the heritage significance of the area". In this case, this requires my consideration of two elements - the demolition and the proposed replacement building which collectively comprise the "proposed development". After a consideration of the development as proposed, I am not prepared to consent to demolition of the existing dwelling because the proposed replacement building will in my assessment of the evidence adversely effect the heritage significance of the HCA for the reasons articulated by the Council.
In forming that view, I accept that the existing building may illustrate the evolution of residential development design styles in Byron Bay and it may have been the home to respected business people in the area as Ms Wray suggests. However, this could be said in respect of any dwelling. An item in a conservation area should, as Mr Hall states in his evidence, be assessed directly for its contribution to the areas defined heritage significance. This is done by determining whether the dwelling falls into the key period of significance and the extent to which it retains its original character (Ex 4 p 15).
In circumstances where there is no fine-grained analysis of the existing dwelling, the starting point for assessment is the Statement of Significance for the Shirley Street HCA and the physical description in the State Heritage Inventory. The principle in Helou is useful as a guide in understanding what is a "contributory item". It was clear from my observations at the site view that the existing building does not contribute to the HCA for the reasons identified by Mr Hall as summarised earlier. In short, the building "by virtue of age, scale, materials, details, design style or intactness" is not consistent with the conservation area (Helou) as defined in the Statement of Significance and State Heritage Inventory (Ex 4 p 12).
Both the time of construction, and its design and materials are not consistent with those matters identified as triggering the significance of the HCA (Ex 4 p 5). Ms Wray seeks to substitute the significance of the HCA identified in the statutory listing with a different test. Along with other things, she identifies the building as significant based on the building's illustration of "the evolution of residential design styles in Byron Bay and other irrelevant matters such as the subsequent occupation of the building in the 1970s". I prefer Mr Hall's more orthodox heritage assessment.

The proposed replacement development

The Council's planning expert, Mr Jeff Mead and Mr Dwayne Roberts, the applicant's planner, have addressed the planning concerns raised by the Council in respect of the replacement development in their joint report filed on 6 June 2024. They also gave short oral evidence in Court.
As the applicant identifies, there are three levels of control that arise from the operation of the DCP:

the controls in Chapter D1, which refer to Part E of the DCP (D1.2.6);
the controls in Chapter E5, which contain the "Residential Character Narratives" - see E5.8.4; and
the heritage controls in Chapter C1.

Mr Mead identifies in the Planning JER a number of elements which are out of character for the locality and inconsistent with the streetscape and character controls prescribed in Chapter D1 "Residential Accommodation in Urban, Village and Special Purpose Zones" of DCP and the existing and desired future character of the locality as prescribed by Chapter E5 "Certain locations in Byron Bay and Ewingsdale" of the DCP.
In short, Mr Mead gave evidence that the two-storey development by its design diminishes the dominance of horizontal form on the site which is antipathetic to the character - both existing and prescribed by the DCP (Ex 5 p 7). He is of the opinion that Section C1.6.2 of the DCP should be given weight over Section D which is more general.
The relevant objectives in Section D1.2.6 in Chapter D1 of DCP are: "1. To retain and enhance the unique character of Byron Shire and its distinctive landscapes, ecology, towns, villages, rural and natural areas. 2. To ensure that new development respects and complements those aspects of an area's natural and built environment that are important to its existing character."
The Performance Criteria, at paragraph 1, stipulates that the development must demonstrate how it is consistent with the relevant Residential Character Narrative in Part E of the DCP (there are no Prescriptive Measures in this control in the DCP).
Part E5.8.4 sets out the Character Narrative for that part of Byron Bay that is described as "Pocket A". This part of the DCP describes the area and then provides the following guidance as to "development": "Developments should use contemporary interpretations of the traditional design elements and detailing found in the older homes and support the "Place Principles" of the Byron Town Centre Master plan by: • offering a range of dwelling sizes and types to cater for a variety of socio-economic groups, including local residential living mixed with commercial opportunities (i.e. live/work) to offset the overly dominant visitor accommodation in the Byron Bay town • avoiding building elements typical of the 1950's to 1970's residential flat and shop top buildings, with a high proportion of solid walls devoid of decorative architectural elements and/or parking/driveway areas dominating the street frontage, creating a poor and unsafe pedestrian environment".
Mr Mead emphasised in his evidence that D1.6.11 of the DCP limits sites within the R2 Low Density Residential Zone to a maximum of three dwellings per 1,000m2 of lot size and for any additional dwellings a further 333m2 is required. This site is 1,012m2 which is 321m2 short of this requirement - a 24% variation. He is of the opinion that the proposed two dwellings are inconsistent with the density controls of the DCP and the density which dominates the character of development within the locality.
Mr Mead emphasises that the objective of the density control in D1.6.11 is to ensure compatibility in bulk and scale with development in the locality, and consistency with the objectives of the zone. He contends that the incorporation of a large basement car park generates adverse impacts in the HCA streetscape. The number of dwellings proposed contributes to the overall building width and footprint, which results in non-compliance with the setback and building height plane controls.
The non-compliant front setback is particularly problematic because it results in an uncharacteristic presentation of this two-storey form to the street. The removal of the pergolas in the amended plans does not overcome concern about the bulk and scale.
The evidence of Mr Roberts in the Planning JER directly addresses the controls in E5.8.4. He has considered the style of recent development in the vicinity of the property and within the Shirley Street HCA. A photographic record of that investigation is included in the Planning JER (Ex 5 Annexure B) and is separately included in the applicant's bundle of documents (Ex C Tab 6).
When the (effective) controls in Part E5.8.4 are considered, in the context of the proposed development, Mr Roberts is of the opinion that the development is consistent with the character of Pocket A and is consistent with the relevant objective of D1.2.6 ("To ensure that new development respects and complements those aspects of an area's natural and built environment that are important to its existing character") and therefore is acceptable.
Both planners accepted that there is no basement car parking on the southern side of Shirley Street. Mr Mead gave evidence that the access ramp and opening to the basement parking does not respect or complement the existing character or streetscape in the context of the primary frontage in a heritage conservation area. The attempt to disguise this uncharacteristic basement car park and ramp behind the 1.4m front fence and self-closing gate does not ensure that new development respects and complements those aspects of an area's natural and built environment that are important to its existing character (Objective 2).
Objective 3 and Performance Criteria 3 of Section D1.6.4 of the DCP provides for efficient on-site car parking which minimises the visual impact of long straight paved spaces. Mr Mead gave evidence that the proposed development does not achieve this objective. It proposes a long driveway and ramp to the basement parking on the site. The driveway ramp in his assessment dominates the eastern side boundary of the site. Mr Mead assesses the parking arrangement is neither efficient or necessary (Ex 5 par 3.16).
Furthermore, Mr Mead offers the opinion that the proposed basement parking is not convenient because there is no access from the basement to the two dwellings, and that the development fails Objective 1 of Section D1.6.4 of the DCP.
Mr Roberts is not in agreement and gave evidence that the provision of parking meets requirements created by development (Table B4.1 Parking rates, B4.2.12 Parking schedules, Chapter B4 Traffic Planning, Vehicle Parking, Circulation and Access).

Findings - The proposed replacement building

To some extent the amendments to the plans during the hearing in response to the evidence (Ex L) have resolved some of the Council's concerns.
The modifications of the front fence to wooden paling with gaps contextually sympathetic with the streetscape in the HCA at a height of 1.4m to provide some screening to the driveway entry offers an acceptable degree of transparency and is an improvement. The removal of the pergolas and amendments to the rear of the development to reduce bulk and overshadowing is also a positive change.
However, after consideration of the matters in s 2.11 of the RH SEPP against the evidence, I find that the replacement building is likely to cause an adverse impact on the cultural and built environment heritage of the HCA area; and I am not satisfied that the development (as amended) has been designed, sited, and will be managed to mitigate or manage that adverse impact. Put simply, the attempt to incorporate a fourth dwelling on this part of the site, in breach of the density control, is the cause of the adverse impact generated by this development. In that regard, I accept Mr Mead's evidence that Objective 1 of Section D1.6.11 of the DCP that seeks to ensure that attached dwellings are compatible with the bulk and scale of development in the locality has not been met. Based on my observations of the streetscape along the southern side of Shirley Street, I accept that the proposal exceeds the residential density across the surrounding sites, which generally contain one or two dwellings, with single storey elements. For that reason, I accept Mr Mead's expert assessment, that it is likely that single dwelling does represent the maximum density capacity for the site at Shirley Street (Ex 5 p 8).
A further consequence of the fourth dwelling is the requirement for a basement car park and non-compliant driveway design both of which are uncharacteristic in the HCA. And, in my assessment the architects' effort to disguise this intrusive feature behind a self-closing gate has obvious limitations. When the gate is open or when viewed through or over the 1.4m front fence (which is higher than the 1.2m fence anticipated by the DCP), these measures are ineffective. I do not accept Mr Hall's assessment that the development is a contemporary interpretation of traditional design elements in the HCA. There are no basement car parks in the HCA. It will be an intrusive element visible to pedestrians when the gate is open and to those walking or cycling near the fence and not on the pedestrian path.
At the view, it was apparent that the footpath area is regularly utilised by walkers and cyclists heading to and from town and the beach. The current design of the driveway ramp compromises pedestrian safety as it is non-compliant with the DCP and the relevant Australian Standard. And, the impacts of the design changes necessary to make the driveway compliant on the retaining wall and side setback are unclear on the evidence before the Court.
The removal of the pergolas does not overcome the development's non-compliances with the building height plane on at least two elevations, at both the ground and the upper levels. These non-compliances have consequences. The reduced side setbacks result in additional overshadowing onto the two new dwellings at the rear and the bulk and scale of the building more generally. Such consequences would be avoided with a compliant building.
In that regard, I do not accept from the bar table the submission (without satisfactory evidence) that the non-compliance with the height plane is the result of compliance with the flood planning level of 2.82AHD but rather a desire to squeeze another dwelling onto the Shirley Street frontage as Mr Mead said.
The existing building is between 6 and 7.5m from the front setback. The control in D1.2.2 of the DCP provides for a 9m setback to the classified road but a variation of 6.5m may be sought for a single storey dwelling or single storey elements of two storey elements. Mr Mead gave evidence, at 4.10 of the Planning JER (Ex 5 p 12), that he was a little flexible on this 9m but did not accept the proposed 6.5m front setback as measured from the face of the building rather than the front wall of the planter at the top level. He does not accept the 4.5m setback is sufficient from the classified road in this HCA. I accept Mr Mead's evidence particularly when Mr Roberts conceded that the Council has approved the front setback control for new approvals such as 42 Shirley Street in accord with the DCP control. There is no satisfactory basis to disregard that control in this case in my assessment of the evidence.
The non-compliant features of the design (front and side setbacks and breaches of the building height plane) support my conclusion that the development has not been designed, sited and will be managed to avoid an adverse impact on the cultural and built environment which in this case is a conservation area: RH SEPP s 2.11.
Importantly, Objective 1 of Section D1.6.11 of the DCP seeks to ensure that attached dwellings are compatible in bulk and scale with development in the locality. I am satisfied on the evidence of Mr Mead and my observations that the proposed development will exceed the existing residential density across the surrounding sites which contain one or two dwellings with single and double storey elements.
While Objective 2 of the DCP seeks to enable a variety of housing types - the already approved development on the site provides two attached dwellings, and a single dwelling, thereby achieving this objective whilst also achieving the maximum permitted density being the three dwellings. The proposed construction of two dwellings in place of the existing dwelling reduces the housing types on the site contrary to the control.
I have considered the photograph record of the style of recent developments in the vicinity of the property and within the HCA and based on my own observations do not accept Mr Roberts' assessment that the proposed addition of 2 x attached dwellings to the Shirley Street frontage is "entirely consistent with the existing and desired future character of the surrounding streetscape". The basement car park is not consistent with the controls in Part E5.8.4; the character of Pocket A and the relevant objective of D1.2.6 "To ensure that new development respects and complements those aspects of an area's natural and built environment that are important to its existing character".
The proposal, as Mr Mead states in his evidence, "significantly increases the vertical bulk and density of development on the site" such that the proposal will be out of character with the locality. The reference for the locality is the HCA. While there are a significant number of two-storey dwellings, they provide parking in front of the dwelling or beside it. In my considered opinion the proposed housing type is not characteristic to the Shirley Street HCA. The applicant submits that the DCP controls should be applied flexibly in accord with s 4.15(3A)(b) of the EPA Act but that is only when the development otherwise has acceptable impacts with respect to bulk, scale and character - which is not the application before the Court for the reasons articulated by the Council's experts.
Accordingly, for the reasons stated, development consent to the proposed development is refused and the application is dismissed.

Final orders

The Court orders: 1. The appeal is dismissed. 2. Development application no. 10.2022.518.1 for the demolition of an existing dwelling and construction of 2 x two-storey dwellings with basement parking and a pool at 50 Shirley Street, Byron Bay is determined by refusal of consent. 3. The exhibits are to be returned following publication of the judgment, except for A, B, D, L, M and 1. ……………….. S Dixon Senior Commissioner of the Court

Endnotes

Ex 4; Spennemann, D H R, 'What Actually Is a Heritage Conservation Area? A Management Critique Based on a Systematic Review of New South Wales (Australia) Planning Documents', (2023) 6 Heritage 5270, https://doi.org/10.3390/heritage6070279
Ex 4 pp 11-12; Spennemann, D H R, 'What Actually Is a Heritage Conservation Area? A Management Critique Based on a Systematic Review of New South Wales (Australia) Planning Documents', (2023) 6 Heritage 5270, https://doi.org/10.3390/heritage6070279

Amendments 31 July 2024 - Correction to typographical error in Catchwords. 31 July 2024 - Correction to typographical error at [79] - deletion of the word "only". 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: 31 July 2024

(2006) 144 LGERA 322

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Cases Cited (2)