Sked v Byron Shire Council [2021] NSWLEC 1022 - Media Statement

Sked v Byron Shire Council [2021] NSWLEC 1022 - Media Statement

Published on 05 February 2021

The Development Application (DA) was received by Council on 5 November 2018.

The DA was publicly notified on Council’s website and in a local newspaper between 21

November 2018 and 12 December 2018. The application was re-advertised and notified between 10 January 2019 and 30 January 2019.

Council received 114 submissions all objecting to the proposed development, with the majority relating to over development, lack of compatibility with existing character, tree removal, storm water drainage, garbage collection and geo-technical instability.

On 25 January 2019 Council was served with documents relating to the commencement of proceedings by the Applicant in class 1 of the Land and Environment Court (LEC) jurisdiction appealing against Council’s deemed refusal of the application.

In the appeal Council contended that the DA should be refused for the following reasons:

The proposed development was not consistent with the objectives of the R2 Low Density Residential zone under LEP 2014. The proposed development was incompatible with the existing and desired future character of the surrounding environment and failed to satisfy the objectives and performance criteria of DCP 2014, clause D1.2.4 Character and Visual Impact.  The extent and scale of the bulk earthworks was excessive and did not satisfy the objectives, performance criteria and prescriptive measures of DCP 2014, clause B14.2 Excavation and Fill in all Zones. The site layout and subdivision design did not respond the natural features of the site and the locality and failed to satisfy the objectives, performance criteria of DCP 2014, clause D6.4.1 Lot size and Shape. The development was likely to result in adverse impacts on the coastal and built environment and was unsatisfactory in relation to the relevant matters for consideration under the Coastal SEPP. The proposed development did not provide sufficient parking to meet the needs of the development. The proposed development did not provide for safe and efficient circulation of vehicles within the site.

Council also contended that insufficient information had been provided to allow a proper assessment of the DA in respect of:

Waste Collection. Stormwater Drainage. Staging and Servicing. Accessibility. Geotechnical Instability and Site Suitability. Landscaping.

The appeal was prepared for hearing which included the engaging of expert witnesses in various relevant disciplines.

The LEC process requires the experts to conference (called ‘joint conferencing’) to assess the application and then to jointly advise and make recommendations to the Court.

Expert Witnesses in LEC proceedings are not adversaries who argue for a particular position put forward by their client. In DA appeals, the role of the experts is to independently assist the Court. They are required to work together to jointly and independently (of their client) advise the Court on the matters they are in agreement on and any matters they disagree about.

The drainage and landscaping contentions were resolved and overcome by additional information being provided by the Applicant.  This additional information was properly considered by Council's experts throughout the joint conferencing process and further refined on the first day of the hearing.  As such, appropriate conditions were drafted by the experts and agreed upon which addressed the storm water discharge and potential flooding downstream which involves the Applicant paying for the upgrading of the pipe and pit in Arika Ave.  The conditions imposed by the court are appropriate and based on sound methodology.  Hence the contention about storm water runoff was satisfactorily resolved in the eyes of the Court. 

Likewise, the contention in relation to landscaping and tree loss was resolved by the experts in the joint conference and again appropriate conditions outlining a comprehensive tree replacement regime were both submitted to the Court which was satisfied with them.

The residual contentions about the aesthetic look and layout of the buildings could not be resolved through the joint expert conferencing process and were the subject of competing town planning evidence which was provided in a joint expert report and by way of oral evidence at the hearing.  The council's expert witness was of the view that fundamentally the proposed development was not an appropriate design response to the topography and resulted in a huge expanse of a common driveway which would be prominent and out of character.  The council's expert planner also asserted that the typology of the buildings was not in keeping with the existing character of the locality.

As is evident from the reasoning provided by Acting Commissioner Morris, she was of the view that because the engineering and landscaping contentions had been resolved, the remaining contention about the building footprints, special separation and design responses to the topography of the landform were appropriate.  As such, she preferred the Applicant's town planning evidence over the Council's evidence. 

This is not a case of the Council's legal representative and experts not presenting a compelling case that the proposal should be refused, on the contrary.  The Commissioner made her subjective call by weighing up the available evidence and with the benefit a thorough site view.  On this occasion she decided in favour of the Applicant. Whilst to some this appears to be the wrong decision, this is the process on appeal which, at times, produces an outcome that not everyone is happy with.