And Byron Council says the judgment could have significant impacts for the Byron Shire.
The court action was launched by CONOS – Conservation of North Ocean Shores – which challenged the validity of the council’s consent on the grounds that development was not permitted in 7(k) habitat zones which covered parts of the site.
In his ruling, Justice Brian Preston said the council had no power to grant consent to a prohibited development and he declared the consent invalid.
Mat Morris, general manager for North Byron Shire Parklands, the name given to the proposed festival site, said the judge had found fault with the council’s technical processing of the application.
Mr Morris said the judge had said the council should have issued consent for both use of roads and a place of assembly, whereas it had only issued consent for a place of assembly.
He said the judge had not raised any concerns regarding the merit of the application itself.
“Contrary to what CONOS have been reporting, Chief Justice Preston had no issue with the environmental integrity of what we are proposing,” he said.
“He had no issue with the suitability of the site.
“We are held up this time by a technical issue relating to the judge’s view of council’s processing of our application..
“It is frustrating that we have further delays due to no fault of our own or what we are proposing.”.
Mr Morris said the site’s owners would continue their efforts to get approval to see the site become a respected sustainable event venue.
“In the meantime our intensive work on improving the biodiversity values of the site will go on,” he said.
The council’s director of planning, Ray Darney, said the court found that the development application did not seek consent for access roads for agricultural usage or other permissible uses.
“As the roads were an integral part of the development application, the court reasoned the entire consent was invalid,” he said.
“This judgment could have significant implications for some landowners in the shire.
“For example, if the court’s logic is applied, a future application for a house in a rural zone which requires a driveway across a 7(k)(habitat) or other environment zone, would have to be refused.
“The judgment left the door open for Splendour to lodge a separate application for stand-alone permissible development in the 7(k) zone such as roads or agriculture.
“The court said council is obliged to assess such an application on the basis of the information contained in the DA and principles of characterisation referred to in the judgment.
“This has the potential to encourage piecemeal applications when council has historically tried to encourage complete applications which disclose to the council and the community all aspects of development proposals.
“This is not as transparent as single complete applications and encourages multiple applications rather than comprehensive ones.
“This not only increases the number of applications council has to assess but can often lead to poor planning outcomes as well.”
Mr Darney said the court’s decision meant the Splendour application remained undetermined.
He said Splendour organisers had not yet provided the council with any indication as to what they intended to do with the application.
The second reason the court found the consent to be invalid was that the council had not properly considered how the development satisfied the 7(k) zone objectives, he said.
The judgment was an indication that the council needed to review the way it presented reasons in assessment reports.
CONOS president, Bob Oehlman, said the decision indicated the group was right in saying the application for the proposed trial was not handled correctly by the council.
Mr Oehlman said the approval went against the council’s own habitat protection zoning.
“We expect a few more twists and turns,” he said.
“Obviously they have invested a lot of money in the site and they would like a return for it.”
The Coalition for Festival Sanity welcomed the court’s decision.
“Although this is only the first victory in our fight to stop the development of the festival site, it could prove to be decisive as council is now unable to approve the use of the environmental protection zone within the proposed site as an access to the festival area," said CFFS spokesperson, Mac Nicolson.
"We feel vindicated as a community that we have taken this stance and we will continue to throw whatever resources we can muster in order to stop this proposal once and for all and by doing so send a message to all those planners and proposers of developments that it is not just about vehicular access, the motor car and dollars.
“The local community must be consulted and environmental considerations respected.
“It would now make a lot of sense for council to get its house in order and proceed with an events policy and social impact policies that are compatible with the community’s wishes."
Mr Nicolson said that Mr Darney should read the transcript of the ruling before ‘going off half-cocked’ and causing alarm for those house owners he said would be affected.
He said the ruling found, on the contrary, that the proposed roads that Splendour wanted to build on the 7k zones could not be deemed to be roads in the true meaning of the definition but were in fact works that were ancillary to the festival site itself and therefore a part of the festival site which was defined as a place of assembly and not permitted in a 7k zone.
Justice Preston ordered Billinudgel Property Pty Ltd, the owners of the land, and Splendour in the Grass Pty Ltd to pay all costs involved in the challenge.
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