The proposed development at 4 Marvell Street, Byron Bay.
The proposed development at 4 Marvell Street, Byron Bay.

'Dumb' idea to challenge 4-storey hotel: Councillor

COUNCILLOR Alan Hunter has descibed fellow Byron Shire councillors' decision to challenge a Land and Environment court's decision in favour of the Marvell Street hotel development as 'dumb' and likely to fail.

In a letter to the Byron Shire News, the National Party member and the lone conservative voice on council, said ratepayers may wind up having to pay not only the council's legal fees but also those of the project's proponent.

He writes:

At the council meeting on the 22nd August last, the Byron Councillors with a majority of 7 votes against 2 resolved to have the General Manager commence a section 56A appeal against the recent decision the Land & Environment Court made to approve the development at 4 Marvell Street in Byron Bay.

Briefly the development is for a 4 storey mixed use building above a basement car park. The proposed uses are a 24 room hotel with ground floor restaurant and rooftop bar and pool, and 2 floors of retail tenants in between.

The reason this application appeared before the court was the excessive time Council had taken to process the application, a 'deemed refusal', triggering the right to have it heard in the court.

Council participated in the court against allowing this development on the basis of the breach in height limitations, that the roof form and building scale was in conflict with the rest of the locality and the likely impact the building would have on the business centre.

Although Council had notified the community, no submissions of objection were lodged, prior to the case.

One could argue that often we get a different result from a development to the one we have for it on the plan and I don't think we always get it right. In this case Council went to bat against the approval and the applicant's case saying the building wasn't in keeping with the locality and the building objectives for the zone.

The court agreed with the applicant and Council lost the argument.

The Commissioner, hearing the case, was satisfied that the community would have a net benefit from the development and the case Council argued was in the end of less importance for the communities' future needs.

The issue of greater concern, as one of the 2 (Cr Spooner was the other) voted against lodging an appeal, is the total disregard for the expenditure of our precious funds.

Council staff, after having sat through all the arguments in the hearing, researched other relevant case decisions by the court, informed us of their decision that an appeal is most unlikely to succeed as the only basis on which to win an appeal, is to prove the decision was based on an error of law.

The decision isn't itself in question; it's whether the decision was made erroneously at law. That is going to be difficult to argue when there is nothing that indicates such a case exists.

The other very worrying aspect of this decision is; if this appeal is unsuccessful, we are up for not only our court costs and staff time but liable for the applicant's costs too, which in this situation, is likely to be significant. By any measure; That is a dumb deal!

Time to think again about who we need making these decisions!

Councillor Alan Hunter

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