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Byron Shire
May 24, 2022

Developers’ advantage

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I refer to the article ‘Are Council’s planning policies failing the community?’ by Hans Lovejoy (27 January), and also the article by Aslan Shand the week before, about the Land & Environment Court’s recent approval of the multi-dwelling development in Bian Court, Ocean Shores.

There is definitely a case for Council to get stuck in and revise its planning controls for ‘suburban’ areas like Ocean Shores and the southern part of Byron Bay, which are the target of developers taking advantage of the controls allowing multi-dwelling development in these areas zoned R2 Low Density Residential.

However, taking a step back, the planning controls prior to the current 2014 LEP actually allowed much the same type of development in these areas. Matthew ‘Cleva’ O’Reilly incorrectly implies that the 1988 LEP was less ‘pro-development’ – it is just that developers are now responding to the high demand in the local housing market by building more multi-dwelling housing in areas like Ocean Shores. By the way, Matthew, a fact check, the 1988 LEP was prepared well before the time of former Greens mayor, Jan Barham. The Greens had nothing to do with it. Oliver Dunne was the mayor at that time.

A good look at the reasons in the Court judgement concerning Bian Court, Ocean Shores is worthwhile, as I believe they give some direction for Council to consider in tightening its planning controls. First of all the Court noted that the development complies with all the current planning controls, being a relatively low scale development with a floor space ratio only half the maximum allowable, and on a site 50 per cent larger than the minimum for multi-dwelling development. It is apparent that the concerns of Council and adjacent residents about landslip, stormwater drainage, and vegetation removal are to be dealt with by conditions.  And, by the way, it is the duty of experts both for Council and for the developer to assist the Court and find solutions and compromises during court cases.

Importantly, the Court was not persuaded by the arguments against the development put forward by Council’s ‘expert’ consultant planner. These arguments sought to establish that the development was not in character with the neighbourhood, etc. The Court was clearly not assisted by the weasel words in the DCP (Development Control Plan) endeavouring to express the future direction of development in Ocean Shores.

I wouldn’t put my money on any support from the NSW government’s Department of Planning for changing Council’s LEP to remove ‘multi-dwelling development’ as permissible development in R2 zones, since this would conflict with the standard zoning template that all councils must follow. In addition Council used assumptions about a significant level of ‘infill’ development to justify its recent Shire Residential Strategy. More productive would be for Council planners to spend time on beefing up the DCP for suburban areas with local residents, to define more precisely local neighbourhood character and ensure that new development is compatible.

Until that happens, expect more wins in the Court by developers for over scaled housing, and multi-dwelling developments in quiet neighbourhoods well away from shopping centres and public transport. Perhaps the undetermined DA (development application) for inappropriate proposed town house development at 103 Paterson Street, Byron Bay will be next? And this type of development will be facilitated by the recently introduced Low Rise Housing Development Code introduced by the NSW Government.

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