Sked No.2 Pty Ltd v Byron Shire Council

Catchwords: DEVELOPMENT APPEAL – multi dwelling housing – contentions resolved – community objections – flooding - traffic

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.14, 4.15, 8.7
Land and Environmental Court Act 1979 (NSW), s 39
Marine Estate Management Act 2014 (NSW), s 56
National Parks and Wildlife Act 1974
Rural Fires Act 1997 (NSW), s 100B
Strata Scheme Development Act 2015 (NSW), s 75
Water Management Act 2000 (NSW), ss 89, 90, 91
Byron Local Environmental Plan 2014, cll 4.1, 4.1E, 4.3, 4.4, 5.21, 5.22, 6.2, 6.6, 6.17, 6.18
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2021

Cases Cited: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22
Port Stephen Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426

Texts Cited: Byron Shire Development Control Plan 2014
Comprehensive Guidelines for Stormwater Management for Mullumbimby dated 26 June 2014
Handbook of Stormwater Drainage Design AUS-SPEC Reference D5 – Stormwater Drainage Design, Northern Rivers Local Government dated December 2019
NSW Government, Bush Fire Protection Guidelines 2019, November 2019
NSW Government, Shelter-In-Place Guideline for Flash Flooding, 2025
Stormwater Drainage Design AUS-SPEC Reference D5 – Stormwater Drainage Design
Stormwater Drainage Design AUS-SPEC Reference D5 – Stormwater Drainage Design, Northern Rivers Local Government dated February 2020

Category: Principal judgment

Parties: Sked No.2 Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation: Counsel:
A Gough (Solicitor) (Applicant)
P Vergotis (Solicitor) (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Madison Marcus Law Firm (Respondent)

File Number(s): 2024/451249

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: This appeal is about the density and potential flooding impacts of a new residential development that is objected to by the local community in Mullumbimby.

2. The Applicant, Sked No.2 Pty Ltd (Sked) has appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) of Byron Shire Council’s (Council) deemed refusal of Development Application No. 10.2024.228.1 (DA). The DA seeks consent for multi dwelling housing comprising 25 dwellings and strata subdivision in two stages at 30 Chinbible Avenue, Mullumbimby. The development is proposed to be staged, as detailed below:

3. Stage 1: Construction of all infrastructure including sewer, water, power, telecommunications, stormwater, driveway, common landscaping, lighting and perimeter fencing, and 12 new dwellings (numbered 8A14, 8A15, 8A16, 8A17, 8A18, 8A19, 8A20, 8A21, 8A22, 8A23, 8A24, 8A25) and all associated fencing and landscaping, and Stage 1 Strata Title Subdivision.

4. Stage 2: 13 new dwellings (numbered 8A01, 8A02, 8A03, 8A04, 8A05, 8A06, 8A07, 8A08, 8A09, 8A10, 8A11, 8A12, 8A13) and all associated fencing and landscaping, and Stage 2 Strata Subdivision.

5. With consideration of the community issues, evidence and legal submissions, for the reasons set out below, I find that the DA should be granted development consent. I accept that the DA has satisfactorily addressed the relevant concerns as agreed by the experts and Council.

Amended Application

4. The Applicant sought and was granted leave pursuant to s 39(2) of the L**and and Environment C**ourt Act 1979 (NSW) and s 38 of the Environmental Planning and Assessment Regulations 2021 (NSW) (EPA Reg) to make minor amendments to the DA, unopposed by Council. The amendments were in relation to further modelling information provided during expert reporting

The site and context

5. Relevantly, a separate application (DA10.2024.154.1) consented to Torrens Title subdivision of one lot into 7 and included ancillary earthworks, services, access, tree removal, demolition and bush fire upgrades to an existing dwelling house. Consent was granted by the Court on 30 April 2025.

6. The subject DA is located on Lot 7 of that subdivision, with a site area of 8,740m2.

7. The site is zoned R2 Low Density Residential under the Byron Local Environmental Plan 2014 (BLEP). Surrounding properties are also zoned R2 and are predominantly single detached dwellings.

8. As will be discussed later, the site has environmental constraints including flooding and bushfire risks. The Court heard from many residents and was shown footage of the impacts of flooding to their homes and the local area that have occurred in recent years.

Expert Evidence

9. The following experts provided written and/or oral evidence during the proceedings:

| Expertise | Applicant | Council | | Flooding | Michael Chavet | Daniel Wood | | Stormwater | Michiel Kamphorst | Renan Solatan | | Traffic | Michiel Kamphorst | Adam Pekol |

Key Issues

10. At the hearing, Council confirmed that the remaining issues in the Statement of Facts and Contentions (SOFAC) had been resolved, with the exception of part of Contention 32:

11. The development application should be refused in the public interest having regard to the public submissions received.

12. Whilst the Contentions are generally resolved, the Court, in standing in the shoes of the consent authority, is still required to determine if consent should be granted with consideration of s 4.15 of EPA Act.

13. For the reasons that I set out below, I accept the parties’ agreement that the substantive contentions have been resolved, that the preconditions to consent have been met and that consent should be granted subject to agreed conditions.

Stormwater Management

13. Council had raised that the proposed stormwater management was not satisfactory and warranted refusal of the DA. At the hearing, the parties agreed that the contention was resolved on the basis of the agreement between the experts in the Stormwater Joint Expert Report (Stormwater JER) and further information provided during the conferencing of the experts. The key stormwater and flooding plans and reports that accompany the DA are as follows and also listed at [20]:

14. Civil Engineering Drawings Prepared by Ingen Consulting dated 5 June 2025 (Civil Plans).

15. Ingen Consulting DRAINS model J1295_DA2 and Music model 20250518.

16. Stormwater Management Plan prepared by Ingen Consulting dated 7 July 2025.

17. The experts confirmed that they had considered the Byron Shire Development Control Plan 2014 Chapter B3 (BDCP), Comprehensive Guidelines for Stormwater Management for Mullumbimby dated 26 June 2014, Stormwater Drainage Design AUS-SPEC Reference D5 – Stormwater Drainage Design, Northern Rivers Local Government dated February 2020 and the Handbook of Stormwater Drainage Design AUS-SPEC Reference D5 – Stormwater Drainage Design, Northern Rivers Local Government dated December 2019.

18. The concerns raised are summarised as:

19. Inadequate capacity in the Garden Ave drainage system for redirected development flow.

20. Unreliable data that had influenced an inadequately sized proposed on-site detention system (OSD), in that that site drains into two catchments not one (being Garden Avenue drainage system to the north and Cassia Court to the Brunswick River to the south).

21. Inability to assess the input parameters of the DRAINS and MUSIC Models as the models had not been provided.

22. Inadequate information on the potential impacts on the built environment and amenity of neighbours from flooding and stormwater.

23. The experts agreed and gave evidence that the final proposed stormwater management system is adequate on the basis that:

24. The DRAINS model confirmed that the installation of 5-kl rainwater tanks for each dwelling will form part of an effective stormwater management system. The stormwater management system, with the OSD, will reduce post-development runoff volumes and achieve levels lower than the observed pre-development conditions.

25. The specific water treatment device, identified as the Atlan Vortceptor SVII00/15 (SQIDEP-verified gross pollutant trap) will treat the water flow generated by the development. The MUSIC modelling confirmed that this device will achieve the stormwater quality targets of the BDCP.

26. That a comprehensive maintenance plan is to be developed in accordance with the specifications of the Atlan Vortceptor SVII00/15, including maintenance by a qualified specialist and establishment of a five year contract. This maintenance plan is to form part of the conditions of consent.

27. Overland flow towards Garden Avenue will be adequately managed through the creation of 1.5m easements over 8 and 10 Garden Avenue (properties that are part of the parent subdivision). As the easements are for managing overland flow, pits and pipes are not required.

28. Overland flow occurring to the south-east will be contained within a reserve prior to discharging into the existing Cassia Court drainage system. Acknowledging that the current Cassia Court drainage system is failing during the 0.2EY storm event, the proposal includes upgrades to the existing infrastructure. The existing pits will be replaced with high inlet capacity pits and an increased pipe diameter in Cassia Court. The experts agreed that the DRAINS model demonstrated the upgrades would result in safe conditions for pedestrians and vehicles during the 0.2EY storm event and improvements during the 1% AEP storm event that is comparable with the current unimproved situation. The experts agree that the proposed upgrades are effective even during more extreme conditions.

29. The experts agreed that all information required had been received and all relevant concerns raised in the contentions have been resolved.

30. On the basis of the above evidence and consideration of the relevant reports accompanying the DA, I am satisfied that the proposed has incorporated adequate stormwater management that will not increase impacts to adjoining properties or the street in the manner anticipated by the relevant planning controls. The recommended conditions have been incorporated into Annexure A. I am satisfied that cl 6.6 of the BLEP (essential services), Chapter B3 of the BDCP and the other referred to considerations have been met and the contention is resolved.

Flooding

18. Council had raised that the DA had failed to demonstrate adequate consideration of a number of flood risk assessment studies and plans and that anomalies in the flooding assessment had been identified. Further consideration was required of the site, proposed built form footprints and potential impacts on adjacent properties. The proposal was required to comply with the current climate 2050 and 2100 flood planning levels and to demonstrate that future residents would not be put at risk from flooding or evacuation risks.

19. The area is subject to serious flooding events, as demonstrated by several flood events that have occurred over the past few years and shown or described to the Court by residents.

20. The experts considered the following reports, plans and models:

21. Architectural Plans prepared by Story Design Collective dated 9 July 2025 (Architectural Plans).

22. Civil Plans.

23. Flood Assessment DA2 prepared by RMC Consulting Engineers dated 19 August 2025 (Flood Assessment).

24. Brunswick River Model Updated prepared by WMA Water dated 21 July 2025.

25. Flood Impact Assessment prepared by Water Engineering Partners dated 1 September 2025.

26. Landscaping Plans prepared by Blackwood Ecological Services with various dates.

27. The experts agreed that the proposed development has appropriately responded to the flooding constraints of the site and will not adversely affect adjoining properties or public areas as set out below:

28. The proposed development is not within the 1% AEP flood extent but is located within the 1% AEP low flood hazard zone (updated to incorporate the 2022 flood event).

29. The dwellings have been designed for the 1% event to pass under the dwellings. A minimum 50% open style fencing has been designed to allow flooding to pass through and will be enforced by conditions of consent. Conditions of consent are to be imposed regarding exclusion of certain materials (particularly undercroft areas) and conversely, imposition of flood resilient materials and construction. Any vegetation is required to be spaced 3-5m.

30. No fill or excavation is proposed on site in the floodplain.

31. Various conditions are agreed to prior to the issue of a subdivision certificate to incorporate the detailed design of the development (which occurs at the construction certificate stage) to ensure that it continues to meet the BDCP; and will have equal to or less impacts than presented at the DA stage.

32. The development will have no flood effects up to and including the 1% AEP PMF event. The development will have a negligible impact on regional flooding during the 1% AEP event in 2050 (including update modelling from the 2022 flood event).

33. One property to the south will be impacted by a less than 2cm increase in flood levels. The experts agreed that the impact was minor.

34. The experts agreed that the flood planning and probable maximum flood (PMF) levels are suitable for the site in these conditions, as demonstrated by the Flood Assessment Report.

35. The Flood Assessment Report and modelling considered the projected climate change effects for both 2050 and 2100 and incorporated the recent 2022 flood event in Mullumbimby.

36. The experts confirmed that the most recent flood studies had been modelled and considered, where an additional 0.3m flood planning level has been incorporated on the basis of the flood behaviour from the 2022 flood event. The flood planning and PMF levels have been based on this modelling, with all dwellings required to have the floor levels of habitable rooms equal to or greater than the levels in the Flood Assessment Report.

37. The Flood Assessment Report details the fast onset of flooding, including roads flooding within 3-4 hours from the beginning of the storm. The duration can be longer than 30 hours from the beginning of the storm. Flooding of habitable floors can occur from 3 hours after the storm commences and ends after 4-5 hours. Given the fast onset of flooding and lack of evacuation centres in the area, though contrary to NSW SES’s primary response strategy to evacuate, the preferred emergency response is to shelter in place. It was agreed that the proposed flood emergency management measures are suitable, including shelter in place procedures above the PMF in each dwelling with contingency kits for support up to five people for up to 78 hours. The shelter in place locations in each dwelling are demonstrated in the Flood Assessment Report.

38. The shelter in place requirements are to be placed on title through an 88B instrument and strata by-laws for the life of development.

39. The Flood Assessment undertakes a detailed assessment against the NSW Government Shelter-In-Place Guideline for Flash Flooding dated 2025. It was agreed that the proposed emergency response plan is suitable in these circumstances.

40. On the basis of the above expert evidence and accompanying reports and plans, I accept the parties’ agreement that cll 5.21 of the BLEP and the relevant provisions of the BDCP and other guidelines have been satisfied. Whilst a property to the south will be impacted with a rise of up to 2cm and the regional flood levels anticipated for 2050 as a result of climate change, and accepting that even a small rise can make a difference between whether a home is flooded or not, I am satisfied that there are no adverse effects to adjoining properties or other areas outside the site as a result of the proposal as agreed by the experts. The contention has therefore been resolved.

Parking

23. Council had contended that the proposed parking was inadequate due to sight line obstructions exiting several of the dwellings. The issue was said to be resolvable but may lead to a loss of car parking.

24. The experts agreed that the sight line issue has been resolved and that an excess amount of visitor car parking was provided. A reduction from nine visitor spaces to seven visitor spaces and the correction to the sight lines when exiting units 8A21 and 8A22 complies with AS2890.1 and the BDCP. I accept the experts’ agreement that the contention is resolved.

Waste Management

25. Council had contended that the proposed road width and access would be inadequate for waste collection. Further difficulties could be caused by parked cars and would limit the ability for the waste collection truck to manoeuvre through the site.

26. The experts agreed that the waste collection truck can adequately manoeuvre on the proposed roads, on the basis that:

27. The internal roads within the development will operate in a one way clockwise circulation through the site.

28. No fencing is allowed for garages adjacent to internal roads (condition 8).

29. The internal road be sign posted as a ‘shared zone’ with associated signage and pavement markings.

30. Entry and exit driveways cross overs are to be designed and construction for waste collection vehicle swept paths in accordance with AS2890.2:2002.

31. These agreements have been included in amended plans or conditions of consent. I am satisfied that the contention has been resolved in accordance with the BDCP.

Objects of the EPA Act and aims of the BLEP

28. Council had raised at Contention 29 that the DA should be refused as it was contrary to the objectives of the EPA Act and aims of the BLEP on the basis of the proposed dwellings resulting in an increase in flooding. There are no express requirements to have regard to either the objects of the EPA Act or aims of the BLEP, even having regard to s 39(4) of the LEC Act. Notwithstanding, flooding has been addressed and satisfied for reasons that have been previously detailed and at paragraph 22 of the Flooding JER. I am satisfied that the contention is therefore resolved.

The public interest and community submissions

29. The hearing commenced on site and with hearing from registered objectors. Many more residents and people who had made a submission during the DA process attended the site view and generally supported the concerns raised. I note that the DA was publicly notified and further submissions were also received in 2025 prior to the hearing. I also acknowledge that the proponent undertook extensive pre-lodgement community consultation.

30. Council pressed part of Contention 32 that the DA should be refused on the basis of the significant and genuine concerns raised in the community submissions.

31. I agree that the majority of the concerns raised by the community are genuine and relevant to the consideration of the amended DA. However, the making of a submission and raising concerns by the public does not rise to a contested issue that joins the parties (see: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [24] and [78]). Council as the relevant Respondent, needs to raise any issues in its contentions so that the parties can address the contention and adduce evidence, if required. I have considered all of the contentions that Council has raised, which are agreed to be resolved, and I am also satisfied on the evidence that these issues have been resolved. I accept Sked’s submissions as to the weight to be given to community objections and that higher weight is to be given to expert evidence (see Port Stephen Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [72] – [73]). It is in this context that I consider the community submissions, as required under s 4.15(1)(d) of the EPA Act.

Permissibility

32. I am satisfied that the proposed development meets the description of and is properly characterised as ‘multi dwelling housing’, being more than three dwellings on one lot of land with ground floor access. The proposed strata subdivision after the construction of the multi dwellings does not alter the characterisation. Multi dwelling housing is a permissible use in the R2 Low Density zone under the group term ‘residential accommodation’.

Heritage

33. The DA was accompanied by a Site Visit and Cultural Heritage Advice Report prepared by TBLALC Cultural Heritage Unit dated 14 May 2025 (Cultural Report). The Cultural Report considers that the site has been highly disturbed in the past, that there were no Aboriginal cultural objects or materials observed (either at the site visit or through Aboriginal cultural heritage mapping databases and cultural knowledge), and that it is unlikely that any will be encountered during construction. Unexpected finds protocols are recommended, and the Cultural Report reiterates that any proponent is bound by the National Parks and Wildlife Act 1974 (NSW) to inform the Department of Planning, Housing and Infrastructure in the event of any finds and to establish a wide buffer zone of any such find immediately. Condition 48 enforces these recommendations.

34. There are no known European heritage affectations on the site or nearby that would be affected by the proposed development.

Out of character, excessive density and poor design

35. The proposed development will be different to the existing subdivision and built form rhythm of Garden Avenue and surrounding streets. However, the proposed development is highly compliant with the key planning controls such as height and FSR. There are minor variations to the BDCP setbacks and building height plane for a small number of dwellings, that I consider do not noticeably impact on the presentation or character of the entire development. With consideration of the Architectural Plans prepared by Story Design Collective dated 9 July 2025 (Architectural Plans), I find that the proposed development is consistent with the desired future character that is facilitated by the suite of planning controls applying to the site.

36. To this end, I also accept that the proposed development has been adequately designed to respond to the site’s constraints (such as flooding), provides good internal amenity and presents appropriately to the public domain.

Minimum lot size

37. There is no minimum lot size applicable to strata subdivision in the BLEP.

Flooding, evacuation and stormwater

38. I have addressed flooding and stormwater previously.

Impacts on vulnerable population

39. The site is affected by flooding and includes a shelter in place evacuation plan. These aspects will be known to future purchasers to inform their decision to purchase one of the properties. The evidence of the traffic engineers is that a waste collection truck can circulate through the site and therefore emergency services will also be able to access the site. The increased dwellings will not result in intersection or road failures that would adversely restrict emergency access any more than the current arrangements.

Parking and traffic impacts

40. The proposal provides the required number of car spaces, including visitor spaces. Whilst there will be an increase in traffic from the proposal, and acknowledging the numerous events that occur in the area that take up on-street car parking, the information accompanying the DA demonstrates that the traffic impacts can be absorbed by the road network.

41. To the extent that Garden Avenue needs upgrade works, Council is responsible for the maintenance and upgrade of roads.

42. I have considered traffic and waste management further above.

Impacts to 9 Rosewood Court

43. I acknowledge that the proposed development will have amenity and outlook impacts on the dwelling at 9 Rosewood Court. Many windows to habitable rooms face the subject site, which is currently an open paddock. The outlook is open and serene. However, the proposal and its r variations to the building height plane are minor. The proposed dwelling that adjoins the site is a raised single storey dwelling, where some outlook to the sky will still be achieved. Privacy impacts have been minimised through mostly locating low use rooms along the eastern elevation. All rooms and the rear lounge area have been fitted with highlight windows which will restrict views out of them. Solar access impacts have also been minimised, with some overshadowing only occurring in the afternoon in mid winter. The proposed impacts are therefore reasonably anticipated, consistent with the BDCP requirements to retain solar access to adjoining properties and acceptable.

Inadequate open space and infrastructure

44. There is no evidence that there is insufficient infrastructure and open space available to accommodate the future residents of this development.

Homes will be rented out and crime prevention issues

45. Whether the dwellings will be rented or owner occupied is irrelevant to the assessment of the DA. To the extent that it was inferred that people who rent are associated with higher crime levels, there is no evidence to support this objection.

46. Renters would need to be made aware of the flooding issue and shelter in place evacuation plan, which is required by Condition 52 to ensure that emergency kits are always provided in each dwelling.

Impacts on home values

47. This is not a planning consideration under s 4.15 of the EPA Act. There is also no evidence of any impacts on home values that would result from the proposed development. I cannot consider the value of home values as a result of flooding as it is not a consideration for this proposal.

Affordable housing

48. I address affordable housing under the ‘Jurisdiction’ section of the judgment, further below.

Adequacy of information

49. I am satisfied that the amended DA is sufficiently detailed to enable assessment of the application.

Acoustic impacts

50. The proposed development is residential in nature and does not propose any noise generating activities beyond a usual residential development.

Conclusion

51. Having considered all of the written and oral submissions of the residents, of which there were a significant amount of objections received, all the relevant issues raised have been satisfactorily addressed by the experts or amended DA. These issues no longer warrant refusal of the DA. Other concerns raised were not relevant to the assessment of the DA, such as profits and insurance.

Jurisdiction

52. The following sets out the Court has the power to grant consent to the amended DA. I am satisfied, having considered all the documentation accompanying the DA, Council’s documentation and referrals from state agency’s that there are no matters that warrant refusal.

EPA Act and EPA Regulation 2021

53. The proposal is accompanied with owner’s consent (Tab 2, Ex A).

54. The site is identified as bush fire prone land. I am satisfied that s 4.14 of the EPA Act and the Planning for Bush Fire Protection Guidelines 2019 are met on the basis of the Bush Fire Safety Authority issued by the Commissioner pursuant to s 100B of the Rural Fires Act 1997 (NSW) (RF Act) and my consideration of the Bushfire Report prepared by Bushfire Certifiers dated 14 May 2024.

55. The proposal is Integrated Development pursuant to s 100B of the RF Act and ss 89-91 of the Water Management Act 2000 (NSW). General Terms of Approval have been received from the relevant agencies for both approvals, and included as conditions of consent.

Strata Scheme Development Act 2015

56. The proposal is accompanied with a strata development contract as required by s 75.

Marine Estate Management Act 2014 (NSW)

57. The site triggers s 56 of the Marine Estate Management Act 2014 (NSW) (Marine Act) given its proximity to Brunswick River and application of the Cape Byron Management Strategy. The DA was referred to the relevant agency, and I have considered the comments received. I am satisfied that the provisions have been met and that the development will not impact on plants or animals within the relevant area.

State Environmental Planning Policy (Resilience and Hazards) 2021

58. Section 4.6 regarding contamination applies to the development. With consideration of the Preliminary Site Investigation Report prepared by Byron Environmental Consulting dated 27 February 2024, I am satisfied that the site is suitable for the proposed use and that contamination is unlikely.

State Environmental Planning Policy (Sustainable Buildings) 2021

59. The amended DA is accompanied by a BASIX Certificate that satisfies the provisions, including embodied emissions.

Byron Local Environmental Plan 2014 (BLEP)

1. I have had regard to the objectives of the zone, and the proposed development for multi dwelling is permissible in the zone.
2. Subdivision is permissible with consent and strata subdivision is not subject to a minimum lot size under cl 4.1.
3. Clause 4.1E requires a minimum lot size of 1,000m2, which is met as the site is 8,740m2.
4. Clause 4.3 height allows a maximum of 9m. The proposal ranges in height from 5.6m to 6.4m.
5. Clause 4.4 FSR allows a maximum of 0.5:1. The proposal complies, at 0.29:1.
6. Clauses 5.21 flood planning is satisfied on the basis of the evidence of the flood experts and numerous flood related reports accompanying the DA.
7. The parties agreed and I accept that cl 5.22 flood planning does not apply. Notwithstanding, I am satisfied that the development will not increase risks to properties or people either within the development or adjoining it on the basis of the evidence of the flood experts.
8. Clause 6.2 earthworks applies. Very minimal earthworks are proposed as a result of the flooding requirements of the flood experts. I consider that there will be very little disruption or change to drainage, soil stability, soil quality, water ways, adjoining properties or relics.
9. Clause 6.6 essential services is met as the site is already serviced by water, sewer and power as detailed by the Council’s referrals (Ex 8). Sufficient stormwater and vehicular access is provided by the proposal.
10. Clauses 6.17 and 6.18 affordable housing apply. The proposal does not remove or displace any affordable housing. I accept the parties’ agreement that the proposal will increase the housing diversity of the area and a monetary contribution is not required in this instance.

Byron Development Control Plan 2014 (BDCP)

60. I have considered Sked’s DA, Statement of Environmental Effects prepared by ELKN dated July 2025 (SEE), Council’s tendered documentation and evidence of the experts. The proposed variations for some dwellings to setbacks, the building height plane and internal building separation distance are acceptable given the lack of amenity impacts and are consistent with the relevant objectives. I accept that the BDCP has been met by the amended DA and adopt as my reasons the explanation set out in the SEE.

Heads of consideration

61. On the basis of the material accompanying the Class 1 appeal and evidence provided by the experts, I am satisfied that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act have been addressed.

Conclusion

62. Based on the amendments made to the DA throughout the development assessment process and ultimately, during the Court proceedings, I am satisfied that there are no remaining issues and that development consent should be granted.

Orders

63. The Court orders that:

64. The appeal is upheld.

65. Development consent is granted to DA-10.2024.228.1 for the construction of twenty five multi dwellings over two stages and associated landscaping, earthworks and infrastructure with strata subdivision at 30 Chinbible Avenue, Mullumbimby, subject to conditions of consent at Annexure A.

66. The exhibits are returned, except for 1, A and B.

S Porter

Commissioner of the Court

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Annexure A.1.88 MB.pdf