A contentious, large development application (DA) for 25 multi-dwellings on flood-prone land next to Mullumbimby Showground will go ahead, after Byron Shire Council lost their second case against developer Callum Sked in court on December 22, 2025.
Surrounding residents at 30 Chinbible Avenue, Mullumbimby were united in their objection to the $17.3m development, which they claimed was excessive in its bulk and scale; had inadequate drainage; lacked open space; and did not provide sufficient flood evacuation options.
Residents say they were unsupported by Council throughout the process.
Regarding a previous DA for the subdivision of the land, residents say they were only alerted to the settlement when they found the judgment, on April 30, 2025, on the NSW Caselaw website.
In that case, Sked took Council to the Land & Environment Court (L&EC) over a ‘deemed refusal’ which is where a council is accused of not assessing DAs in the statutory timeframe.
It became the subject of a compulsory conciliation process conducted behind closed doors, overseen by the court. According to the judgement by Commissioner P Nichols, Council’s lawyers agreed to the applicant amending DA 10.2024.154.1, which led to the appeal being upheld and conditions imposed.
This also means that the DA avoids being debated and determined by elected councillors.
With Council losing that case [Sked v Byron Shire Council (2025) NSWLEC 1265], all costs were incurred by Council.
In May 2025, it was revealed by residents that no staff report on the DA was ever provided publicly.
Resident Aaron Diehm told The Echo at the time, ‘Why hasn’t Council gone into bat for us? Silence from our elected representatives is simply not good enough.’
Court conditions
The latest win by Sked was handed down on December 22, 2025 in the L&EC by Commissioner Shona Porter [Sked No.2 Pty Ltd v Byron Shire Council (2025) NSWLEC 1913].
Like the previous case, Sked appealed in the court against Council, owing to a ‘deemed refusal’. As the respondent, Byron Shire Council was represented by Solicitor P Vergotis and Madison Marcus Law Firm.
A key issue, according to the judgement, was: ‘At the hearing, Council confirmed that the remaining issues in the Statement of Facts and Contentions (SOFAC) had been resolved, with the exception of part of contention 32: (1) The development application should be refused in the public interest having regard to the public submissions received’.
One impacted resident told The Echo, ‘The developers’ lawyer correctly pointed out Council led no evidence on the issue of public interest. It would only have been mentioned in objectors’ submissions, which carried little weight in the end’.
The judgment reads, ‘While the contentions are generally resolved, the court, in standing in the shoes of the consent authority, is still required to determine if consent should be granted with consideration of s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act)… I accept the parties’ agreement that the substantive contentions have been resolved…’
As part of conditions for approval, there is, ‘No fill or excavation proposed on site in the floodplain’… and, ‘The Flood Assessment Report and modelling considered the projected climate change effects for both 2050 and 2100, and incorporated the recent 2022 flood event in Mullumbimby’.
And, ‘Prior to the issue of the Construction Certificate, all dwellings are required to provide detailed plans of a suitable ‘shelter-in place’ (SIP) area that: (i) is above the PMF level as shown in Table 1 in condition 20 for flood evacuation purposes during larger floods; and (ii) has a minimum area of 10m2 and include a toilet and handwash basin’.
Commissioner Porter wrote, ‘Council had raised at Contention 29 that the DA should be refused as it was contrary to the objectives of the EPA Act and aims of the BLEP (Byron Local Environment Plan) on the basis of the proposed dwellings resulting in an increase in flooding’.
‘There are no express requirements [in] regard to either the objects of the EPA Act or aims of the BLEP, even having regard to s 39(4) of the Land and Environment Court Act 1979 (LEC Act). Notwithstanding, flooding has been addressed and [is] satisfied’.
Public submissions
Commissioner Porter wrote, ‘I agree that the majority of the concerns raised by the community are genuine and relevant to the consideration of the amended DA. However, the making of a submission and raising concerns by the public does not rise to a contested issue that joins the parties (see: Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 at [24] and [78]).
Regarding the strong opposition by neighbours as a factor in determination, Commissioner Porter wrote, ‘I accept Sked’s submissions as to the weight to be given to community objections and that higher weight is to be given to expert evidence (see Port Stephen Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [72] – [73]).’
In line with ‘future character’
While Commissioner Porter acknowledged that, ‘The proposed development will be different to the existing subdivision and built form rhythm of Garden Avenue and surrounding streets’. she said, ‘However, the proposed development is highly compliant with the key planning controls such as height and FSR (floor space ratio)’.
‘With consideration of the architectural plans… I find that the proposed development is consistent with the desired future character that is facilitated by the suite of planning controls applying to the site’.
Profoundly disappointed
One impacted resident, Chris Leach, told The Echo, ‘A profoundly disappointing decision. The legitimate concerns of residents were largely ignored. Although some minor concessions about use of fill and stormwater were negotiated, Council and L&EC demonstrated an essentially pro-development stance on density and the compromise of the local character and environment’.
Former Council planning director, Ray Darney, was employed by residents to defend the DA, and told The Echo, ‘Obviously I am disappointed with the L&E Court’s decision’.
‘This cookie-cutter style of housing is a precedent for the residential development in the towns in our beautiful Shire’, he said.
Sked previously proposed a similar, albeit smaller, high-density DA on unstable, slip-prone land in Ocean Shores in 2019, and faced stiff opposition from residents. He took Council to court over a ‘deemed refusal’ and won.
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