Dromore Properties Pty Ltd v Byron Shire Council

[2018] NSWLEC 1324

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dromore Properties Pty Ltd v Byron Shire Council [2018] NSWLEC 1324
Hearing dates:	Conciliation conference on 29 June 2018
Date of orders:	29 June 2018
Decision date:	29 June 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Dromore Properties Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	Solicitors: M Young, McCartney Young Lawyers (Applicant) C Rose, Swaab Attorneys (Respondent)
File Number(s):	2018/72546
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Dromore Properties Pty Ltd against the deemed refusal by Byron Shire Council of the construction of multi-dwelling housing comprising three (3) dwellings, alterations and additions to an existing dwelling and strata subdivision to create two (2) strata lots including a vacant development lot at 57 Carlyle Street, Byron Bay.

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the plan, a copy of which is at Annexure 'A':

Plan No.	Description	Prepared by	Dated:
DA.02 / D	Proposed Works + Subdivision Plan	Those Architects	7/5/18

2. The appeal is upheld.

3. The Applicant is to pay the Respondent's costs under section 8.15(3) of the Environmental Planning Assessment Act 1979 agreed in the sum of $4,000 and payable within 28 days of the date of orders being made by the Court.

4. Development Application No. 10.2017.686.1 for alterations to an existing dwelling house and the subdivision of two lots to create two strata lots at Lot 14 Sec 30 DP 758207 and Lot 2 DP 401710 known as 57 Carlyle Street, Byron Bay be approved, subject to the conditions in Annexure 'B'.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (1.46 MB, pdf)

Annexure B (108 KB, pdf)