Sked v Byron Shire Council

Texts Cited: Byron Shire Development Control Plan 2012

Category: Principal judgment

Parties: Callum Sked (First Applicant)
Byron Shire Council (Respondent)

Representation: Counsel:
A. Gough (Solicitor) (Applicants)
P Vergotis (Solicitor) (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicants)
Piper Alderman (Respondent)

File Number(s): 2024/283610

Publication restriction: Nil

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of the refusal of development application 10.2024.154.1 by Byron Shire Council lodged on 29 May 2024. This appeal concerns a development application for Torrens Title subdivision of 1 lot into 7 lots including ancillary earthworks, services, access, tree removal, demolition and bush fire upgrades to the existing dwelling house at 30 Chinbible Avenue, Mullumbimby, Lot 159 in DP 755687.

2. Proposed Lots 1 to 6 all front directly onto Garden Avenue and Lot 7 gains access to Garden Avenue via two battleaxe handles. Proposed Lots 1 and 6 have areas of 600.2m2, and the existing dwelling house on the site is to be accommodated on proposed Lot 1. Proposed Lots 2 to 5 all have areas of 600.0m2. Proposed Lot 7 has an area of 8,740m2. All necessary services would be extended to serve the proposed lots as required.

3. The proposal removes five trees. The proposal will impact one native tree and around 0.3 hectares of grassland. Four of the trees to be removed are exotic species. To compensate for the tree removal, 14 replacement trees are proposed.

4. The two small sheds at the rear of the existing dwelling house and the rural shed in the south western corner of the site are proposed for demolition.

5. The site is bush fire prone land. Subdivision of bush fire prone land for residential purposes is integrated development. The general terms of integrated development approval issued by the NSW Rural Fire Service includes requirements to upgrade the existing dwelling house in response to the bush fire hazard.

6. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement between the parties

7. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 7 February 2025. I presided over the conciliation conference. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. The terms of the agreement between the parties involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

9. As part of this agreement the Council agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), to the applicant amending the development application. These amendments included a revision of the flooding and stormwater reports. The amendments also included seeking consent for demolition of existing sheds.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

Jurisdiction

11. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites they saw as of relevance in these proceedings and explained how they have been satisfied. Mindful of this advice I make the following findings in relation to jurisdiction.

Biodiversity Conservation Act 2016

12. Section 7.7 requires a development application for development that is likely to significantly affect threatened species to be accompanied by a biodiversity development assessment report. I am satisfied with the advice of the parties and the information provided in the Statement of Environmental Effects (SEE) by Elkin dated May 2024 that the proposed development does not exceed the Biodiversity Offset Scheme threshold and would not have a significant impact on threatened species and that a BDAR is not required.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. As the property is zoned R2 Low Density Residential Chapter 2 of SEPP B&C applies. The proposed development would require the removal of five trees within the Garden Avenue road reserve to accommodate the required stormwater works. Four of the trees are exempt species and do not require a consent or permit to remove. The remaining tree is a Lilli Pilli with moderate significance. To compensate for the tree removal the applicant is required to plant 7 trees in the road reserve via conditions of consent. I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that Chapter 2 is satisfied.

State Environmental Planning Policy (Resilience and Hazards) 2021

14. The subject property is within an investigation area and does not involve a change of use into an activity identified in Table 1 of the Contaminated Land Guidelines. The history of the usage of the property is unknown and as such a preliminary investigation is required under s.4.6(4)(c) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H). The Development Application is accompanied by a Preliminary Site Investigation Report which confirms that the land is suitable for its intended use and that further detailed investigation is not required. I am satisfied the requirements of s 4.6(1) of SEPP R&H have been met and that the land is suitable for residential development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

15. The proposed development involves stormwater works within 2 metres of an electricity distribution pole and as such s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021(T&I SEPP) applies.

16. The DA was not referred to the electricity supply authority (Essential Energy) given that the development is unlikely to have a significant impact on electricity infrastructure and no referral mechanisms were considered to have been triggered by the T&I SEPP. As such a standard condition was imposed requiring a Notice of Arrangement (NOA) to satisfy the requirements from the electricity supply authority. I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that the requirements of s 2.48 have been met.

Byron Local Environmental Plan 2014

17. I am satisfied with the advice of the parties and the information provided in the SEE that the proposed development is permissible with consent under cl 2.6 and 2.7 of the Byron Local Environmental Plan 2014 (BLEP).

18. Clause 2.3 requires the consent authority must have regard to the objectives of a zone in determining a development application. The relevant objectives of the R1 zone are:

• To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To maximise the delivery of housing while being responsive to environmental values and amenity of adjoining land uses.

19. I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that the requirements of cl 2.3 have been met.

Flood Planning

20. Clause 5.21 BLEP draws upon the Flood Risk Management Manual for the definition of a flood planning area. Although the subject property is not within a flood planning area, Council’s flood mapping shows the site as being flood prone land.

21. In respect of cl 5.21(2), the parties are satisfied that subject to imposition of condition 46(f), the development:

22. is compatible with the flood function and behaviour on the land;

23. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties;

24. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood;

25. incorporates appropriate measures to manage risk to life in the event of a flood; and

26. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

27. In respect of flooding considerations raised at clause 5.21(3) BLEP, the parties’ advise that:

28. the impact of the development on projected changes to flood behaviour as a result of climate change are not determinative.

29. this consideration is not relevant in that new buildings consist only of stormwater and sewer infrastructure.

30. this consideration is not relevant in that no dwellings are proposed.

31. There is no realistic potential to modify, relocate or remove buildings resulting from the development if the surrounding area is impacted by flooding.

32. I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that the requirements of cl 5.21 have been met.

Special flood considerations

24. I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that the requirements of cl 5.22 does not apply because the proposed development is not for sensitive or hazardous development as defined by this clause and is not development that would cause a risk to life.

Earthworks

25. The proposed development involves earthworks associated with the installation of services. The extent of earthworks is extremely minor, its impacts are small and I am satisfied with the advice of the parties and the information provided in the SEE by Elkin dated May 2024 that the requirements of cl 6.2 BLEP have been met including that:

26. the earthworks will not disrupt drainage patterns or soil stability. The proposal involves the construct of stormwater management measures in the road reserve which will improve the conveyance of stormwater in the locality.

27. The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment. The upgrade to Garden Avenue will facilitate development in the locality.

28. Conditions of consent have been prepared to prohibit the importation of fill.

29. The minor excavation will not detrimentally affect existing and likely amenity of adjoining properties.

30. The likelihood of disturbing relics is low given the history of land uses on the property.

31. The site will not have adverse impacts on a waterway, drinking water catchment of environmentally sensitive area.

32. The proposed development involves the installation of water quality treatment systems and sediment and erosion control measures.

Other Section 4.15(1) Considerations

26. There is no proposed environmental planning instrument that has been subject of public consultation and which requires consideration under s.4.15(1)(a)(ii) of the EPA Act.

27. The parties agree that the amended DA can be approved taking into consideration the matters in sections 4.15(1)(b) – (e) of the EPA Act. Matters relevant to paragraphs (b), (c) and (e) are considered generally in the information provided in the SEE by Elkin dated May 2024.

28. I note and accept the parties’ advice that the Development Application was notified in accordance with the EP&A Act. Forty-five public submissions were received during the notification period. Matters raised have either been addressed by the conditions of consent or do not warrant refusal of the application. I am satisfied with the advice of the parties and the information provided in the Statement of Environmental Effects (SEE) by Elkin dated May 2024 that the development is in the public interest.

Owner’s Consent

29. Written Owner’s consent has been provided in the application as required by section 23 of the EPA Reg.

Conclusion

30. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders I make below have this effect.

31. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

32. The Court notes that:

33. Byron Shire Council, as the relevant consent authority, has agreed, pursuant to s. 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA10.2024.154.1 to rely upon the plans and documents in Annexure A.

34. The Court orders that:

35. The appeal is upheld.

36. Development application 10.2024.154.1 for Torrens Title subdivision of 1 lot into 7 lots including ancillary earthworks, services, access, tree removal, demolition and bush fire upgrades to the existing dwelling house at 30 Chinbible Avenue, Mullumbimby, Lot 159 in DP 755687, is determined by the grant of development consent subject to the conditions included at Annexure A.

37. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act (1979) the Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the Development Application, as agreed or assessed.

P Nichols

Acting Commissioner of the Court

Annexure A (2193234, pdf)

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