Ardill Payne and Partners v Byron Shire Council

[2018] NSWLEC 1419

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ardill Payne & Partners v Byron Shire Council [2018] NSWLEC 1419
Hearing dates:	Conciliation conference on 6 August 2018
Date of orders:	06 August 2018
Decision date:	06 August 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ardill Payne & Partners (Applicant) Byron Shire Council (Respondent)
Representation:	Solicitors: M Young, McCartney Young Lawyers (Applicant) P Hudson, Marsdens Law Group (Respondent)
File Number(s):	2018/34091
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the Applicant to amend Development Application No.10.2017.639.1 (the DA) by substituting the following plans for the plans that are the subject of the DA:

Plan No.	Description	Prepared by	Dated:
01 Rev B	Cover sheet, area schedule	Byron Bay Drafting	26/06/2018
02 Rev B	Site (survey) plan	Byron Bay Drafting	26/06/2018
03 Rev B	Site plan	Byron Bay Drafting	26/06/2018
04 Rev B	Ground floor plan	Byron Bay Drafting	26/06/2018
05 Rev B	Roof plan	Byron Bay Drafting	26/06/2018
06 Rev B	Sections (1 and 2)	Byron Bay Drafting	26/06/2018
07 Rev B	Elevations (east and south)	Byron Bay Drafting	26/06/2018
08 Rev B	Elevations (west and north)	Byron Bay Drafting	26/06/2018
09 Rev B	Landscape plan, Street elevation	Byron Bay Drafting	26/06/2018

2. The Applicant’s written request lodged pursuant to clause 4.6 of the Byron Local Environmental Plan 2014 seeking to contravene the development standard in clause 4.1E of the Byron Local Environmental Plan 2014 is upheld.

3. The appeal is upheld.

4. Development Application No.10.2017.639.1 for alterations and additions to an existing dwelling house and the erection of a single storey detached dwelling house (to comprise a dual occupancy on the site) with a car port and car space, including vehicular access to the rear new dwelling via a driveway from Kallaroo Circuit, on the land at 33 Kallaroo Circuit, Ocean Shores (known as Lot 2083 DP 808462), is approved subject to the conditions of consent at Annexure “A”.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (294 KB, pdf)

Plans (1.07 MB, pdf)