Byron Highlander Estate Pty Ltd v Kyogle Council

[2017] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byron Highlander Estate Pty Ltd v Kyogle Council [2017] NSWLEC 1285
Hearing dates:	Conciliation conference on 2 June 2017
Date of orders:	05 June 2017
Decision date:	05 June 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: free range piggery; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Byron Highlander Estate Pty Ltd (Applicant) Kyogle Council (Respondent)
Representation:	Solicitor: Mr M Cottom, HWL Ebsworth Lawyers (Applicant) Ms C Huegill, CH Law (Respondent)
File Number(s):	2017/50746
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development application 2016/59 for the purpose of a free range piggery on part Lot 12 in DP 1065804 known as 126 Studders Lane, Cedar Point.

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development application 2016/59 lodged with the respondent on 29 July 2016 for consent to carry out the use of part Lot 12 in DP 1065804 known as 126 Studders Lane, Cedar Point for the purpose of a free range piggery (rotational outdoor piggery) is determined by the granting of consent subject to the conditions in Annexure "A".

……………………….

G Brown

Commissioner

50746.17 Brown (C) (182 KB, pdf)