Constable v Byron Shire Council

[2021] NSWLEC 1655

Land and Environment Court

New South Wales

Medium Neutral Citation:

Constable v Byron Shire Council [2021] NSWLEC 1655

Hearing dates:

Conciliation conference on 27 September and 12 October 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

Refer to orders below at [14]

Catchwords:

APPEAL – development control order – building erected without required development consent – demolish works order – conciliation conference – agreement – substituted order

Legislation Cited:

Byron Local Environmental Plan 2014

Environmental Planning and Assessment Act 1979, s 8.18, 9.34, Schedule 5

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

William Constable (First Applicant)
Susan Elizabeth Constable (Second Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
W Wall (Solicitor) (Applicants)
C Rose (Solicitor) (Respondent)

Solicitors:
Wall & Company Lawyers (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

21/155921

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against a development control order (Order) given to the Applicants by Byron Shire Council (Council) on 5 May 2021. The Order concerns a shed/studio building (Building) erected on the land described as Lot 2 DP 258036 and known as 198 Main Arm Road Mullumbimby (Land).

2. The Order requires the demolition of the Building. The Order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. Item 3 in the table allows a development control order to be issued as a “demolish works order” where a building requiring a planning approval is erected without approval. Such an order can be given to the owners of the land on which the building has been erected.

3. The Land is within Zone RU1 – Primary Production under the Byron Local Environmental Plan 2014. The erection of the Building is permissible with development consent on land within that zone. However, the Building was erected without development consent having been obtained.

4. The Applicants are the owners of the Land and have appealed against the Order pursuant to s 8.18 of the EPA Act.

5. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 September and 12 October 2021. I presided over the conciliation conference.

7. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

8. The agreement reached is for the order to be modified so that

1. the time for compliance is extended until 6 June 2022; and

2. the Building will not have to be demolished if, prior to 6 June 2022:

1. there is a development application approved (either by the Council or the Court) for the use of the Building and any related building works; and

2. a building information certificate has been approved in respect of the Building.

9. The agreement also provides for the parties have liberty to apply to extend the time specified for compliance with the Order where reasonable steps have been taken by the parties to comply with the Order.

10. I am satisfied that the decision to make orders to modify the Order is a decision 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), for the reason that s 8.18(4)(b) of the EPA Act gives the Court the power, on the hearing of the appeal, to modify the development control order, and s 8.18(4)(f) allows the Court to make such other order with respect to the development control order as the Court thinks fit.

11. Having reached the state of satisfaction that the decision the subject of the parties’ agreement is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to dispose of the proceedings in accordance with the decision.

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

13. The Court notes:

1. The land owners of Lot 12 in DP 616224 (Lot 12) consent to the land owners accessing Lot 12 where demolition of the structure is necessary.

2. The Land Owners undertake that no more work will be attended to on the structure until a development application is approved and a construction certificate issued.

14. The Court Orders:

1. The Appeal is upheld.

2. The Development Control Order issued to the Applicant on 5 May 2021 by Byron Shire Council in relation to Lot 2 in DP 258036, known as 198 Main Arm Road, Mullumbimby, NSW (Order), is varied as follows:

1. The Order is amended so that the time for compliance is by 6 June 2022;

2. Order 1 is amended to add (after the words “(depicted in Attachment A)” the following words:

“by 6 June 2022, unless:

a) There is a development application approved (either by the Council or the Court) for the use of the shed structure depicted in Attachment A, and any related building works;

b) A building information certificate has been approved in respect of the shed structure depicted in Attachment A.”

3. The parties have liberty to apply to extend the timeframe provided for compliance with the Order where reasonable steps have been taken by the parties to comply with the Orders.

​​​​​​​……………………….

A Bradbury

Acting Commissioner of the Court

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Decision last updated: 27 October 2021