Tyagrah Holdings Pty Limited v Byron Bay Shire Council

Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 CASES CITED: Bechara v Plan Urban Services Pty Ltd and Others [2006] NSWLEC 594 Moto Projects (No 2) v North Sydney Council [1999] NSWLEC 290

DATES OF HEARING: 12, 13, 18 and 30 June and 3 September 2008

APPLICANT Mr A Galasso, SC Instructed by Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES:

RESPONDENT Mr A Seton, solicitor of Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11142 of 2007 Tyagrah Holdings Pty Limited v Byron Bay Shire Council

JUDGMENT Introduction 1 This appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 involves an application under s 96(2) of the Act to modify a development consent granted by the Byron Shire Council on 15 December 1997. That consent is for the establishment of a tourist facility comprising 16 tourist cabins, a restaurant, recreational and associated facilities on land comprising Lots 11 and 12 DP 1055902 and Lot 8 in DP 608158 being land in Grays Lane Tyagarah. The conditions of consent effectively require that all access is to be off Grays Lane that is to be upgraded and sealed.

2 According to the council's amended statement of facts and contentions the site has an area in excess of 62 ha. The eastern part of the site is heavily vegetated with native vegetation and includes designated wetlands under State Environmental Planning Policy No.14 - Wetlands. The site also contains areas of endangered ecological communities and threatened flora species under the NSW Threatened Species Conservation Act 1995 as well as vegetation of high conservation value according to the Byron Biodiversity Conservation Strategy 2004.

3 Significant areas of the site have been cleared and there are three large artificial lakes that were created from previous sand mining activities. There is a ridge that runs north-south through the site. Existing improvements on the site include a number of buildings (that are to be variously modified or otherwise utilised as part of the proposal), fencing and gravel tracks. 4 The principal modifications now sought include: - The enlargement of the site the subject of the application. - The relocation or repositioning of the cabins, - The relocation of the restaurant and swimming pool, - The relocation of an internal access road, - The provision of the main access to the cabins off Buckleys Road instead of off Grays Lane. 5 The site is situated in the rural locality known as East Tyagarah, which is a short distance to the north of Byron Bay. Existing development in the vicinity of the site includes a number of rural residential dwellings large agricultural properties and the Tyagarah Nature Reserve. Planning controls 6 Under Byron Local Environmental Plan 1988 the site is variously subject to the 1(a) General Rural-Zone, 7(a) Wetlands Zone and 7(b) Coastal Habitat Zone and in these zones a rural tourist facility and refreshment rooms are prohibited. Also applicable is Byron Development Control Plan 2002. Advertising 7 The modification application was advertised and 17 objections were received. Matters of concern raised in these objections include: · Traffic, environmental and amenity impacts associated with the use of Buckleys Road that is a single lane dirt road. The existing access of Grays Lane should be utilised instead. · The restaurant and swimming pool should be retained in its presently approved location to provide ease of access to these facilities for cabin occupants. They should not be located adjacent to Grays Lane and should not be opened to the public. · The revised location of the cabins along the ridgeline will be visually intrusive. · Odours from the sewage treatment and disposal areas could affect nearby residential amenity. Facts and contentions 8 The Statement of Facts and Contentions identifies the following essential issues: 1. The proposed modifications will result in a development that is not substantially the same development as the development for which the consent was originally granted. 2. The modified development will no longer be low scale in nature compatible with the rural environment and of minimal environmental impact taking into account cl 34 of the LEP. 3. The proposed access to the site via Buckleys Road will have an adverse impact on the amenity of residential properties in terms of traffic, noise and privacy. Also the proposed upgrading of Buckleys Road in lieu of Grays Lane is inappropriate and will contribute to these impacts. 4. Seven of the cabins will be relocated on or close to the ridgeline and will thus have an adverse visual impact on the rural landscape taking into account cl 31 of the LEP. 5. The proposed location of the restaurant close to Grays Lane will result in adverse visual impacts taking into account its design, inappropriate size in the context of a low scale rural tourist facility and the requirements of cl 34 of the LEP. Substantially the same development 9 Section 96(2) of the Act provides, relevant to this application, that: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and... 10 The provisions of s 96 of the Act (and its previous manifestation in s. 102 (1) (a)) have been judicially considered on a number of occasions and the following are the relevant important findings or principles that can be utilised in considering whether or not a particular development is substantially the same development as the development for which the consent was originally granted. - The word substantially means essentially or materially or having the same essence. In assessing whether the test is met a factual comparison between the approved development and the proposed modifications is required. - The question must be asked and answered with respect to the particular circumstances of the individual modification application - It is for the decision maker to decide the relevant range of facts to assist in determining the question. - Even though certain modifications of a development may be described as significant this does not mean that the modified development could not necessarily remain substantially the same as the approved development. The comparison process involves an appreciation both qualitative and quantitative of the development being compared in its proper context. - Any planning appraisal of the modified development is not relevant to the threshold question.

(See Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Bechara v Plan Urban Services Pty Ltd and Others [2006] NSWLEC 594; and Moto Projects (No 2) v North Sydney Council [1999] NSWLEC 290) 11 In applying these principles to the question of whether the proposal the subject of this application is substantially the same as that for which consent was originally granted, I have already broadly identified the proposed modifications. More particularly the qualitative and quantitative factual comparison of these modifications as described in the joint town planning report prepared by Mr Dawson and Mr Byrne and elsewhere comprise: - As a result of a boundary adjustment the site has been increased in area by 2.7 ha so that it now has an area of 63.16 ha. - The approved development involves the provision of the cabins, a restaurant and swimming pool within an area of about 300 m by 80 m with all cabins located on the east of the internal road and on the east side of the ridge. The restaurant is located 30 m from the nearest cabin and a reception building is positioned within the cabin cluster. It is now proposed that the cabins be contained within an area of about 315 m by 140 m. Four of the cabins are to be relocated to the west of the internal road on the west side of the ridge. - The restaurant is to be enlarged, redesigned and relocated to the north-east of the site at distances of more than 300 m from the cabins and the reception building 45 m to the north-east of the northernmost cabins site. - New staff quarters are to be located a further 20 m to the north-east and a new manager's residence be located in the vicinity of the cabins sites. - The design including visual presentation of every component of the development is changed. - The car parking arrangement is changed with more parking areas provided in separate clusters - The approved internal access road that was to be used as the principal access to the cabins from Grays Lane is to be upgraded and relocated. - The main access to the cabins is now proposed to be off Buckleys Road instead of off Grays Lane. 12 In my opinion each of these changes is significant in its own way but this does not in itself mean that the modified development is not substantially the same as that which was originally approved. Also the proposed modifications will, in my opinion having considered all of the evidence provided, result in improvements to the development as well as some adverse impacts. However these are irrelevant in this context.

13 In a very general sense the modified development will have the same essence as the approved development. It will still be a tourist development comprising cabins, restaurant and associated facilities. Despite this the changes that are described above will, being numerous and significant, so transform the originally approved development so that it will be materially different such that it fails the test in s 96(2) of the act.

14 As a consequence the modification power is not available for this application and there is thus no need to consider the merits of the matter. Similarly I am unable to amend or delete any conditions of consent that I might otherwise have considered to be unreasonable. The appeal is therefore dismissed. 15 Despite this I wish to make some observations regarding what I consider to be the most significant and determinative merit matter in the proceedings, being the requirements cl 31 and 34 of the LEP. I also comment on the existing condition of consent that requires the upgrading of Grays Lane.

16 As referred to above the amended proposal will relocate four of the cabins to the west of the internal road on the west side of the ridge. The cabins on the east side to be variously relocated, two of them closer to the ridge. Whilst the ecological experts were satisfied that these revised locations were satisfactory Mr Dawson was concerned that they would have an unsatisfactory impact and would not comply with cl 31 and 34 of the LEP. 17 Clause 31 of the LEP provides that consent shall not be granted to the erection of a building on or near any ridge line ... unless no alternative location for the building is available. Relevantly cl 34 (3) provides, in effect, that consent may only be granted where a proposal incorporates adequate landscaping and screen plantings for visual amenity when the development is viewed from a public road or a dwelling house and there will be no adverse visual impact on the locality. Also the development is to be low scale in nature, compatible with the rural environment and of minimal environmental impact and buildings should be clustered so as to reduce impact on rural amenity.

18 Mr Dawson and Mr Byrne having considered these requirements in their joint report disagreed as to whether the proposal would produce a satisfactory outcome. Having considered their evidence and having considered this aspect of the proposal when I visited the site I find the evidence of Mr Dawson persuasive. 19 The contour maps reveal that the access road in the vicinity of cabins 7-16 is located on a geographic formation that I accept is at least for the purposes of the LEP a ridge. The cabins are variously positioned between about 12 m and 20 m from the centre of the road on the ridge. In numerical terms one night accept that the distances of between 12 m and 20 m does not place the cabins on or close to the ridgeline. However because the ridge has a relatively flat crown I accept Mr Dawson's explanation that nearness relates to the contours rather than lateral distances because the control is about visual impact. I thus accept that these relocated cabins would be either on or near the ridgeline.

20 In relation to the question of whether there are alternative locations for the cabins Mr Dawson disagreed with Mr Byrne's contention that moving the cabins to lower contours would cause negative environmental impacts. In this regard he commented that a number of the approved cabin sites would be acceptable with some minor adjustments. Otherwise there is sufficient unconstrained land that lies to the east of the ridge top for some relocation of building sites. Whilst Mr Byrne did not agree that this land was unconstrained I have not been persuaded that the area of the site in the general vicinity of the approved cabins would be so constrained that suitable cabin sites could not be discovered. In these circumstances the modified development would fail the cl 31 test. 21 Whilst the cabins have a single storey design, and taking into account their skillion roof form and the topography, this results them having wall/building heights of up to 7 m. This would be the building height that would present to a viewer observing the cabins from the west and the east. By comparison whilst the approved cabins have gabled roofs that have equivalent heights, their typical wall heights are much lower, enabling them to sit more comfortably into the landscape. Also the analysis (including Exhibit D) of a number of the cabins revealed them to have relative heights such that their roof peaks project above the ridgeline. As a result I agree with Mr Dawson who argued that the cabins would not be low scale in nature and that the ridgeline would be substantially intruded upon.

22 There was disagreement between the town planners as to the extent to which the cabins might be perceived from the west particularly from the Pacific Highway and other public lands. Whilst the visual impact on the character of the locality would not be great, taking into account the distance of separation, this still remains as a negative factor to be considered. 23 Similarly, whilst the spread of the cabins is now somewhat more dispersed by comparison with the approved arrangement I am not convinced that this, of itself, necessarily results in an incompatibility with the rural environment. To the extent that this may have been problematical, such impacts might possibly have been mitigated by landscaping and screen plantings, notwithstanding that these measures are not presently proposed.

24 Taking all of these matters into account and despite the fact that some of the approved cabins might project above the skyline I have nevertheless been persuaded that what is now proposed is unacceptable, particularly in the light of cl 34 of the LEP.

25 As for the location of the restaurant and the swimming pool I agree that, taking into account that these facilities are principally provided for the benefit of the users of the cabins it would be much better if they were retained as part of the cluster and thus within easy walking distance of the cabins. 26 The other matter that I wish to deal with is the condition of consent dealing with Grays Lane. The revised condition E10 in essence requires the bitumen sealing of Grays Lane from the Pacific Highway to the eastern end of the existing gravel section. It was not in dispute that this part of the lane needs to be sealed for safety reasons. However I agree that the increased traffic generated by this development does not form a reasonable basis for this applicant to carry the entire cost of the upgrading. Certainly the applicant could reasonably be required to make a proportional contribution, taking into account existing traffic volumes, but what is presently proposed would be disproportionate and thus effectively disconnected from the proposal. In the absence of an alternative condition that reasonably apportions the costs I would have deleted it.

          T A Bly
          Commissioner of the Court
          ljr

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