A contentious large four-storey mixed-use building proposal at 4 Marvell Street, Byron Bay is likely to go ahead after Council lost its court appeal against developer Scott Emery.
And as a result, the court have ordered that Council pay the costs of the appeal to the developer.
The decision may lead to increases in height and floor space ratio (FSR) within the CBD by other developers seeking similar outcomes.
The DA proposes a 24-room hotel, a ground-floor restaurant, rooftop pool and bar above two ground floor retail tenancies. A 18-car-bay basement is also proposed.
Commissioner J Duggan dismissed the appeal in the Land and Environment Court on December 17, which challenged a previous decision in July 2019 by Commissioner Smithson regarding questions of law.
Specifically it related to exceeding floor space ratio (FSR) and height limits as prescribed in Council’s planning policy.
Commissioner Smithson considered at the time that the ‘development will not create an adverse precedent given all of the circumstances of the case’.
In her judgment, she wrote, ‘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’.
Council’s legal representatives claimed the original decision by commissioner Smithson ‘erred in law in the determination of the height objection, in that she did not form the necessary opinion required by cl 4.6(4)(a)(ii) in that she failed to form an opinion as to consistency with the objective in cl 4.3(1)(a) of the Byron LEP (the Objective).’
Additionally lawyers representing Council claimed ‘by considering that the objective did no more than restate the need for compliance with the height control, the commissioner did not form the necessary opinion as to whether the written objection had adequately addressed the matters as required by cl 4.6(4)(a)(i).’
Furthermore, ‘The commissioner erred in law in the determination of both the height and the floor space ratio (FSR) objection in that she was required to make separate and distinct findings pursuant to cl 4.6(3)(a) and (b) and contrary to that requirement the Commissioner conflated those requirements.’
The owner of 7 Marvell Street has proposed a similar development, with a three-storey building made up of 29 one and two-bedroom hotel rooms, a swimming pool, health spa and shops.
In responding to Council’s appeal, commissioner J Duggan said, ‘While the commissioner’s reasons are in some respects not sequential and/or with some looseness of expression, the reasons when read as a whole, without an eye for error, discloses the reasoning and the findings of satisfaction required.
Loose language
‘Of particular significance to this finding is that the commissioner expressly found that the height objection met the requirements of cl 4.6(3) at [141].’
While admitting the ‘unfortunate loose language’ adopted by commissioner Smithson in her previous judgment, commissioner J Duggan accepted that the ‘building was designed such that the non-compliance with the height standard would be largely imperceptible.’
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