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Byron Shire
May 9, 2021

Byron Council loses appeal over Marvell St development

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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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  1. It appears that the gold coast has arrived in Byron Bay.The pretense that local government can stop big business from doing what they want is now removed and the future revealed. How long before the beachfront is shaded by an 80 story monstrosity

  2. It’s totally wrong that devekopers can appeal against loca Council decisions. We elect local Councillors to uphold what ratepayers and residents want. How do we change this law?

    • Local councils are powerless when state law overrides them and Byron is a GST cash cow for the state government so it in is their best interests to make sure the growth keeps churning. I totally agree with you, this is not a democracy when money and power overrides a decision made by a locally elected government only to benefit people that have nothing to do with Byron. The greedy ambitions of one person apparently overrides the opinions of a whole community. Hopefully the precedent hasn’t just been set for the mega-hotel at the old Woolworths site on Jonson st.

  3. If it exceeds floor space ratios AND height limits AND the Byron Bay masterplan AND is inconsistent with the specific clause of the LEP relating to such developments in the CBD, how can it possibly be approved? WTF? Not to mention the pathetic provision of only 18 parking spaces for a 24-room motel with a restaurant and two shops (+ staff)….clearly should have been closer to 30 spaces.

    Of course it creates an “adverse precedent”, how can it not? All future DAs can now rely upon this judgement. If the developers no longer need to adhere to the provisions of the LEP then Council has lost control and it is open slather. Go for it chaps ! I really hope Council takes it further.

    It begs the question about the motives and affiliations of Commissioners Smithson and Duggan….. were they appointed by this pro-development government solely to undermine the restrictions of LEPs and facilitate development? Have they ever enforced LEPs and denied developers in other cases?

  4. Either the town and/or shire (and the Council as our agents) have the right to set max height bldg standards, or we do not. Such an intentional push against established policy as this DA represents is not something that Commissioner Duggan should feel qualified to judge based upon its ‘imperceptible effect.’ Especially where the stated concern by the Shire was the establishment of precedent which would – in all likelihood – serve as a springboard for later, non-compliant DA’s. Some would believe that matters of law and policy were the issue, not a particular commissioner’s personal aesthetic taste. Thanks for trying anyway, Council.

  5. if this is called “democracy” i want no part of it. the local community, represented by council, decided against this monstrosity!

  6. There would be many who would sympathise with you Anthony.
    Look at this sentence:
    “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.
    18 car spaces does not go into 24 rooms. So to me as the article is presented the hotel causes a parking problem when street parking in Byron Bay at a premium. Is that not why Council have propsed the Butler Street Bypass? To let off pressure of parking and the congestion in Byron Bay?


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