8 Marvell Street Pty Ltd v Byron Shire Council [2026] NSWLEC 1363

Catchwords: A PPEAL – Development application – conciliation conference – agreement between the parties – orders Land and Environment Court New South Wales Medium Neutral Citation: 8 Marvell Street Pty Ltd v Byron Shire Council [2026] NSWLEC 1363 Hearing dates: Conciliation Conference 29 May 2026 Date of orders: 17 June 2026 Decision date: 17 June 2026 Jurisdiction: Class 1 Before: Targett C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application 10.2025.280.1 for the demolition of existing buildings, removal of existing site vegetation and the construction of a mixed use building containing basement carpark, ground floor retail and ten shop top apartments including two affordable housing units at 8 Marvell Street, Byron Bay NSW 2481, also known as Lot 9 in Section 33 in Deposited Plan 758207 is determined by the grant of consent subject to the conditions in Annexure A. (3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs thrown away as agreed or assessed . Catchwords: A PPEAL – Development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.10, 8.11, 8.15 Land and Environment Court Act 1979 (NSW) , ss 17, 34 Byron Bay Local Environmental Plan 2012, cll 4.3, 4.3A, 4.4, 4.6, 5.21, 6.1, 6.2, 6.6, 6.13, 6.14 Environmental Planning and Assessment Regulation 2021 (NSW) , ss 29, 38 State Environmental Planning Policy (Housing) 2021 , Ch 2, 4, ss 15, 16, 19, 20, 21, 145, 147, Sch 9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental Planning Policy (Transport and Infrastructure) 2021 , s 2.48 Texts Cited: Apartment Design Guide (NSW) 2015 Byron Shire Development Control Plan 2014 Category: Principal judgment Parties: 8 Marvell Street Pty Ltd (Applicant) Byron Shire Council (Respondent) Representation: Counsel: A Boskovitz (Solicitor) (Applicant) P Vergotis (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Madison Marcus (Respondent) File Number(s): 2025/350876 Publication restriction: Nil Judgment COMMISSIONER : Background This is a Class 1 Development Appeal pursuant to s 8. 7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent ’ s deemed r efusa l of the applicant ’ s development application No 10.2025.280.1 (Development Application) . The Development Application sought consent for the demolition of existing buildings, removal of existing site vegetation and the construction of a mixed-use building containing basement carpark, ground floor retail and ten shop top apartments, two of which are affordable rental housing, on land identified as Lot 9 in Section 33 in Deposited Plan 758207 , kno wn as 8 Marvell Street, Byron Bay ( Subject Land ) . The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act). The Development Application The D evelopment A pplication w as lodged with the respondent on 1 August 2025 . The Development Application was publicly notified between 13 August and 9 September 2025 . Two submissions were received objecting to the proposed development. On 12 September 2025 , the proceedings were commenced in relation to the deemed refusal of the Development Application , being w ithin the appeal period prescribed by s s 8.10 and 8.11 of the EPA Act. On 15 October 2025, the respondent refused the Development Application. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was terminated on 8 April 2026 . Following the conciliation process, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed Section 34 A greement was filed with the Court on 22 May 2026 following the applicant agreeing to amend the Development Application (see documents at [ 51 ]) . The signed Section 34 A greement is supported by an agreed jurisdictional statement. The agreed amendments to the Development Application (Amended Development Application) relevantly include: reducing the bulk and scale of the building form; managing internal and external amenity; deleting a roof terrace; providing additional deep soil; and providing additional opportunities for active street frontages. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties ’ decision if the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions . Jurisdictional considerations As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow. Owners consent O wners ’ consent was provided to the D evelopment A pplication when it was lodged with the respondent (see Class 1 Application, tab 2 ) . The Court notes that the registered proprietor of the Subject Land has since changed and updated owners ’ consent has been provided (see letters dated 28 May 2026 in respect of Marvell St Pty Ltd and Marvell St – No 2 Pty Ltd). Environmental Planning and Assessment Regulation 2021(NSW) The proposal is accompanied by a Design Verification Statement prepared by SRH Architects dated 26 February 2026 (Design Verification Statement) for the purposes of s 29(2) of the Environmental Planning and Assessment Regulation 2021 (NSW) . State Environmental Planning Policy (Resilience and Hazards) 2021 Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless: (a) i t has considered whether the land is contaminated; and (b) i f the land is contaminated, it is satisfied that the land is suitable in i t s contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) i f the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. The Development Application is accompanied by a Preliminary Site Investigation prepared by ADG Consulting dated May 2025 (PSI). The PSI concludes that the Subject Land is likely to be suitable for the proposed use subject to the implementation of various recommendations . The parties agree that these findings ( and Conditions 1, 7a, 47 , 73 and 101 of the agreed c onditions) are sufficient for the purpose of satisfying s 4.6 of the RH SEPP. State Environmental Planning Policy ( Sustainable Buildings) 2022 The Amended Development Application is accompanied by BASIX Certificate No. 180 3279M_04 prepared by SLR Consulting Pty Ltd dated 18 March 2026. State Environmental Planning Policy (Housing) 2021 The parties agree that State Environmental Planning Policy ( Housing ) 2021 (Housing SEPP) applies to the Amended Development Application . Chapter 2 of the Housing SEPP relating to affordable housing applies to the Amended Development Application as the proposed development meets the requirements of s 15C of the Housing SEPP . This is because the Amended Development Application : is permissible with consent in the E1 Local Centre zone under the Byron Local Environmental Plan 201 4 ( B LEP) (being characterised as “ shop-top housing ” ); provides more than 10% gross floor area as affordable housing ; and is to be carried out within 800m walking distance of land in a relevant zone (being the E1 Local Centre zone) . The Amended Development Application seeks the benefit of a floor space ratio (FSR) bonus under s 16 (1) of the Housing SEPP . The parties agree and I accept that, applying the bonus FSR of 30%, a maximum FSR of 1.69 :1 would be permitted at the Subject Land (being 1.3:1 under the BLEP plus 30%) if 15% of the FSR is dedicated to affordable rental housing for a period of 15 years. The Amended Development Application proposes 262.09 m 2 of affordable housing (being over 15%) . Therefore, in accordance with s 16 of the Housing SEPP, the Amended Development A pplication qualifies for the “ bonus ” incentive under the Housing SEPP and the FSR bonus is enlivened. Therefore, the parties agree, and I accept, that the Amended Development Application complies with the relevant FSR standard. The Amended Development Application also seeks the benefit of a height bonus under s 16(3) of the Housing SEPP . The parties agree, and I accept that, the applicable maximum height for the development is 19.5m (being 11.5m under cl 4.3 of the B LEP plus 30% under s 16(3) of the Housing SEPP plus the additional 3.5 m calculated in accordance with cl 4.3A of the BLEP ). Therefore, the Amended Development Application complies with the relevant height standard . Section 19(2) of the Housing SEPP sets out non-discretionary development standards for the purposes of residential development that, if complied with, prevent the consent authority from requiring more onerous standards for those matters. The parties agree that all of the non-discretionary standards set out in s 1 9 are complied with (see pp 33 to 35 of the Statement of Environmental Effects prepared by Plant Consulting dated July 2025 (SEE)) , with the exception of s 19(2)(b) relating to landscaping . Pursuant to s 19(2)(b) of the Housing SEPP, a non-discretionary minimum landscaped area development standard of 30% of the site area applies to the Subject Land (Landscaped Area Standard). The Amended Development Application seeks to construct a basement over the entire site area and therefore provides no landscaped area under the definition in the Housing SEPP ( despite providing planting over 40% of the site area) . As such, the Amended Development Application seeks to vary the Landscaped Area Standard and is supported by a Clause 4. 6 Exception to Development Standards request prepared by Plant Consulting dated January 2026 ( Landscaped Area Request ) . The Landscaped Area Request provides a detailed assessment of the Amended Development Application ’ s compliance with the matters raised in cl 4.6(3) of the B LEP and concludes that: Compliance with the Landscaped Area Standard is unreasonable or unnecessary in the circumstances because: the objectives of the Housing SEPP (in the absence of specific landscaping objectives) are achieved by the Amended Development Application ; and the Amended Development Application will technically provide 401 m 2 of landscaping (totalling 40.5% of the site area) despite not strictly meeting the definition of landscaped area within the Housing SEPP due to its location over a basement. There are sufficient environmental planning grounds to justify the contravention because: the non-compliance is of a technical nature only, noting that 40.5% of the site area will be landscaped and the non-compliance will be not visible from the public domain ; and the proposal will achieve the existing and desired future planning objectives for the locality. In respect of the Landscaped Area Request, the applicant has demonstrated that compliance with the Landscaped Area Standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the Landscaped Area Standard in accordance with the requirements under cl 4.6(3) of the B LEP. Section 20(3) of the Housing SEPP relevantly provides that consent must not be granted to development to which Division 1 applies unless the consent authority has considered whether the design of the residential development is compatible with the desirable elements of the character of the local area or for precincts undergoing transition, the desired future character of the precinct . The parties agree , and I accept, that the proposed development is so compatible (see pp 34-35 of the SEE and Design Verification Statement ) . Section 21 of the Housing SEPP relevantly requires the consent authority to be satisfied that the affordable housing component of the development will be used for affordable housing for at least 15 years following the issue of an occupation certificate and that the affordable housing component will be managed by a registered community housing provider . Condition s 5 and 82 of the a greed c onditions adequately addresses s 21 of the Housing SEPP. In determining the Amended Development Application, I am satisfied of the matters set out in s 21 of the Housing SEPP, having regard to condition s 5 and 82 of the a greed c o nditions. The parties agree that Ch 4 of the Housing SEPP relating to design of residential apartment development applies to the proposed development as the proposal is for shop top housing . Section 145(2) of the Housing SEPP requires the consent authority to refer the application to the design review panel for the local government area in which the development will be carried out for advice on the quality of the design of the development. The parties confirm that that the Byron Design Excellence Panel has previously considered the Development Application and provided advice on the quality of the design on 21 September 2025 . Section 147 of the Housing SEPP requires the consent authority to have considered the matters listed in s 147(1) of the Housing SEPP (which includes the Apartment Design Guide (ADG ) , the design principles in Sch 9 and any advice received from the design review panel) before granting consent. The parties agree, and I accept, that the matters in s 147(1) have been considered having regard to the Design Verification Statement . State Environmental Planning Policy (Transport and Infrastructure ) 2021 For the purposes of s 2.48(1)(b) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP), the development , the subject of the Development Application is proposed to be carried out within proximity to an overhead electricity power line. Pursuant to s 2.48(2) of the TI SEPP, a consent authority must give written notice to the electricity supply authority for the area in which the development is to be carried out (being Essential Energy in this case), inviting comments about potential safety risks, and take into consideration any response to the notice that is received. The Development Application was consequently referred to Essential Energy pursuant to s 2.48 of the TI SEPP. Essential Energy provided its consent to the Development Application, subject to conditions. Essential Energy ’ s comments are incorporated in the agreed conditions of consent (see Sch 4, p 45 of the agreed conditions) . Byron L ocal Environmental Plan 2014 The Subject Land is zoned E1 Local Centre under the B LEP . Accordingly, shop top housing is permitted with consent in the E1 zone. I have had regard to the zone objectives which are extracted below: • To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area. • To encourage investment in local commercial development that generates employment opportunities and economic growth. • To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To maximise public transport patronage and encourage walking and cycling. The parties agree, and I accept, that the Amended Development Application is consistent with the objectives of the E1 zone. Pursuant to cl 4.3 of the B LEP relating to height of buildings and noting the height bonus established at [ 20 ] above , a maximum height development standard of 19.5 m applies to the Subject Land. The parties agree, and I accept, that the Amended Development Application complies with the relevant height standard. Pursuant to cl 4.4 of the B LEP relating to FSR and noting the FSR bonus established above at [ 19 ] , a maximum FSR development standard of 1.69:1 applies to the Subject Land . The parties agree, and I accept, that the Amended Development Application does not exceed the relevant FSR s tandard. Pursuant to cl 5.21 of the BLEP relating to flood planning, the Subject Land is identified as being within the flood planning area. Development consent must not be granted to development unless the consent authority is satisfied of the matters in cl 5.21(2) and has considered the matters in cl 5.21(3). The parties agree, and I accept, that the matters in cl 5.21(2) have been satisfied and the matters in cl 5.21(3) considered , having regard to: t he building will be raised to above the probable maximum flood in line with the respondent ’ s requirements; the conclusions in the Flood Risk Management Report prepared by Smart Structures Australia dated February 2026 (Flood Report); and agreed conditions of consent. Pursuant to cl 6.1 of the BLEP relating to acid sulfate soils, the Subject Land is identified as Class 3 land. The proposal is accompanied by an Acid Sulfate Soil Report prepared by Pacific Geotech dated June 2025 (ASS Report) . The ASS Report concludes that based on the testing undertaken, the soils to be disturbed on site do not require treatment for acid sulfate potential . Therefore, the parties agree, and I accept that an acid sulfate soils management plan is not required for the works pursuant to cl 6.1(4) of the BLEP. Pursuant to cl 6. 2 of the B LEP relating to earthworks, the consent authority must consider the matters specified in cl 6. 2 (3) when deciding whether to grant consent for earthworks. The parties agree, and I accept, that the Geotechnical Investigation Report prepared by Pacific Geotech dated June 2025 and agreed conditions of consent consider and respond to the matters listed in cl 6. 2 (3) and there is no impediment to the grant of development consent. Pursuant to cl 6.6 of the BLEP relating to essential services, the parties agree, and I accept that , all relevant services are provided for in relation to the Subject Land. Pursuant to cl 6.13 of the BLEP relating to design excellence, development consent must not be granted for development unless the consent authority considers that the development exhibits design excellence, having regard to the matters in cl 6.13(4) . The parties agree, and I accept, that the proposal exhibits design excellence , noting that engagement with the Byron Design Excellence Panel occurred prior to the lodgement of the Development Application with their comments addressed at p p 13 and 30-31 of the SEE. Pursuant to cl 6.14 of the BLEP relating to active street frontages in Byron Bay town centre, development consent must not be granted unless the consent authority is satisfied that the building will have an active street frontage. The parties agree and I accept that the building will have an active street frontage, noting that: t he amended plans have resulted in changes to allow for 140 m 2 of active floor space at the front of the Subject Land and 20 m 2 at the rear; and changes to the plans have resulted in activation of a majority of the ground level by amendments to parking and waste areas. Byron Development Control Plan 2014 The parties agree, and I accept, that the Amended Development Application has considered and addressed the relevant provisions of the Byron Shire Development Control Plan 20 14 (see also pp 36-44 of the SEE) . Remaining matters under s 4.15(1) of the EPA Act The matters set out in s 4.15(1)(b), (c) and (e) of the EPA Act are addressed generally in the SEE (see pp 43-44). As set out at [4] above , f or the purposes of s 4.15(d) of the EPA Act, the Development Application was publicly notified between 13 August and 9 September 2025. Two submissions were received objecting to the proposed development raising concerns including : d estruction of Byron B ay character and over development; e xcessive built form; insufficient setbacks; tokenistic landscaping; lack of integration with locality ’ s pedestrian and cycle network; design deficiencies; and economic impacts on surrounding businesses. I am satisfied that the submissions received have been taken into consideration in the assessment and determination of the Amended Development Application. Conclusion As the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties ’ decision. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. The Court notes that the respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) , the applicant amending Development Application No DA 10.2025.280.1 to rely on th e following documents: Architectural plans prepared by SRH Architecture Pty Ltd dated 13 March 2026; community housing provider letter prepared by Cubic Real Estate dated 23 February 2026 ( the ‘Housing Letter’ ); design verification statement prepared by SRHA dated 26 February 2026 ( the ‘DVS’ ); BASIX Certification 1803279M_03 and associated Nat HERS and commitments prepared by SLR Consulting Pty Ltd dated 25 February 2026; BASIX Certificate issued on 18 March 2026; Na tHERS Certificate dated on 18 March 2026; Landscape Plans prepared by Wyer & Co dated 25 February 2026 ( the ‘Landscape Plans’ ); Landscape 4.6 prepared by Planit Consulting dated February 2026 ( the ‘Landscape 4.6’ ); amended stormwater plans (rev D) prepared by Smart Structures Australia dated 26 February 2026 ( the ‘SW Plans’ ) ; stormwater plans annotated by Council; Flood Risk Management Report (rev 3) prepared by Smart Structures Australia dated February 2026 ( the ‘Flood Report’ ); Traffic response prepared by MLA Transport Planning dated 25 February 2026; Structural Report prepared by Smart Structures Australia dated 13 February 2026 ( the ‘Structural Report’ ); and Operational Waste Management Plan prepared by Elephants Foot dated 25 February 2026 ( the ‘OWMP’ ). Orders The Court orders that: The appeal is upheld. Development Application 10.2025.280.1 for the demolition of existing buildings, removal of existing site vegetation and the construction of a mixed use building containing basement carpark, ground floor retail and ten shop top apartments including two affordable housing units at 8 Marvell Street, Byron Bay NSW 2481, also known as Lot 9 in Section 33 in Deposited Plan 758207 is determined by the grant of consent subject to the conditions in Annexure A . Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent ’ s costs thrown away as agreed or assessed. N Targett Commissioner of the Court Annexure A (2.45 MB, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2026