I’m no lawyer, but…
The third rejection of a long-running development application (DA) in Bangalow by Council last week will likely lead to a showdown in the Land and Environment Court, we are told.
A proposal for a two-storey building with eight dwellings, three shops with basement car park and attic has pushed Council’s planning policies beyond the max; it would cover almost the entire block and sits on the relatively quiet Station Street adjacent to the historic A&I Hall.
Submitted by Sydney-based developers Gordon Highlands, It received a lot of criticism for being out of character with the rest of Bangalow, and public meetings were held. It’s arguably out of character with just about anything in Byron Shire, really.
Anyway, confidential legal advice was given to councillors regarding their chances of defending the rejection. It’s interesting that staff opinion changed to now recommending acceptance of the DA since the last rejection, despite only minor changes being made this time.
And whatever legal advice was tabled, it clearly rattled Crs Cubis, Woods and Hunter; they voted against Council holding ground and supporting community objections. They wanted instead for it to pass and ask general manager Ken Gainger to mediate.
While voting to minimise the chances of expensive court costs is prudent, the double edge is of course is that it messes with the fine balance of public amenity and sets precedents.
And in this case the majority of councillors are rightly concerned at the impact traffic may have given the building’s size; the primary school is opposite the back laneway.
Holding ground can lead to wins of course; at Thursday’s meeting, the mayor pointed out other DAs that were defeated: KFC, Dan Murphy’s… and even a development on Mullumbimby’s Station Street that was averted just before it went to court.
Regardless, a lot of this hinges on Council’s Development Control Plan (DCP). But what is it? According to Byron Council’s website, a DCP is supplementary to the Byron Local Environmental Plan (LEP), ‘by providing more details, guidelines and controls applying to the various forms of development permitted…’
Incidentally, the DCP was also adopted by Council last week, which is a key issue that divides mayor Simon Richardson and Cr Sol Ibrahim over West Byron.
While the mayor says it’s a ‘useless’ policy that has been ‘gutted by the state government’, Cr Ibrahim says he’s confident that the DCP, ‘coupled with other statutory instruments and plans of management, can produce a great outcome.’
So doth this policy contain magical powers?
One comment gleaned was from Council’s executive manager of planning, Ray Darney. He said of the policy last week that, ‘While only a guideline, some provisions are prescriptive and must be met when submitting a development application such as sewer, water and communication utilities. Other provisions allow flexibility and innovation in design to be accommodated such as landscaping.’
So there you have it. The court will presumably, along with other factors, examine how this case applies to the DCP.
The question is: like sport, will this be a game of two halves? And instead of sport being the winner, in this case will it be the lawyers?