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Byron Shire
February 26, 2021

‘No adverse precedent’ – Byron tourist hotel gets court approval

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A Land & Environment Court decision upholding an appeal has approved a large tourist hotel proposal for 4 Marvell Street, Byron Bay.

If unchallenged by Council, it may provide a precedent for future developments in the town. Council’s legal counsel Ralph James told The Echo advice is being sought from its external lawyers as to potential grounds of appeal and prospects of success.

‘Any decision to appeal will not be taken under delegation’, he said.

The orders by commissioner Jenny Smithson on June 27 over-ruled Council staff’s DA refusal, which was based on ‘the height, floor space ratio (FSR), character and design of the building; the adequacy of the proposed carparking; social and environmental impacts on the surrounding area; precedent; and the public interest’.

The four-storey mixed-use building proposal is by Scott Emery and comprises a 24-room hotel and a ground-floor restaurant, rooftop pool and bar above two ground floor retail tenancies. A 18-car-bay basement is also proposed.

The Echo also asked James, ‘Could Council have won this case if its planning instruments were more explicit in defining and limiting height restrictions, ie is there a way to ensure less flexibility and more prescriptive planning outcomes?’

James replied, ‘In terms of Clause 4.6 of Byron LEP 2014, this is a compulsory standard Instrument clause in LEPs across NSW. There is little scope for Council to amend the wording of this particular provision’.

Regarding precedent, lawyers representing Council told the court they were concerned that the ‘approval of the development would encourage further height breaches in the area’.

Community expectations

‘Further, the community expected the council to impose applicable development standards and ensure that development did not generate negative impacts on the surrounding area. If approved, this development would set a precedent that undermines the development standards that the community expects to be upheld’.

A past case of similar contention was referred to, which determined that precedent was a valid consideration.

Council’s lawyers are quoted in the judgment: ‘It will impact on the streetscape and there is a real possibility that, in this attractive location of Byron Bay, other applications may seek similar development outcomes’.

‘The development would create an additional storey to enable a use (the bar) that could accommodate up to 100 people at any one time. This was more patrons and noise than the controls permit’.

Yet commissioner Smithson considered that the ‘development will not create an adverse precedent given all of the circumstances of the case’.

‘My decision in supporting the height breach should therefore not be construed as supporting four-storey development in the town centre, per se. I accept such an outcome would not accord with the masterplan vision or expectations of the Byron Bay community as outlined in the masterplan’.

Compliance flexibility provides ‘work’ for staff

Commissioner Smithson also said that clause 4.6 exists in the LEP ‘to allow flexibility to vary standards subject to compliance with the requirements of that clause.

‘It would have no work to do if the council did not allow any variations on the basis of the potential adverse precedent of varying development standards, per se’.

The Echo asked commissioner Smithson, via an L&E Court media spokesperson, ‘Will this precedent have potential to create an adverse precedent in the future Byron Bay CBD?’

The spokesperson replied that commissioners do not comment on judgments.

Regarding the public interest in the judgment, ‘The applicant noted that, in a community as vocal as Byron Bay’s, there had been no objections to the development including from residents in the nearby R2 Low Density Residential zone’.

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  1. Well, we knew that was a “given”. Pity there’s no planning controls over ugly major buildings the court must address. These huge buildings will blot our landscape until the sea really takes us out. If only the courts had to take into consideration the precedent of the disastrous Mercato built by the same mob.

    There was an opportunity for a developer with aesthetics and vision to do something really fine that we could accept as a positive addition to the town…knowing as we do, that Byron is going to continue to be developed as long as the dollar value is there for developers.

    Aside from the shock of the cold hard ugliness of the interiors, visit the women’s toilets in the cinema… at the very back of the building, down a set of steps (where’s the disabled access?) and out of earshot should anyone in there need help. Oh, perhaps in the supreme wisdom of the designer, they’ve put a sound alarm system in there. Doubt it.

  2. The Commissioner admits that her decision supports the height breach and then accepts “…such an outcome would not accord with the masterplan vision or expectations of the Byron Bay community as outlined in the masterplan”?

    Our elected Council has opposed the application and the Commissioner acknowledges community expectations are being defied, so whose expectations is she satisfying?

    Perhaps when a decision so obviously defies community expectations just saying “commissioners do not comment on judgements” is not sufficient.

  3. If Bryon Council us going to approve this kind of development which will bring even more tourists, they had better do something to improve the access roads into the town. As a whole, the standard of roads in the area us disgraceful.


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