Koho Projects Pty Ltd v Byron Shire Council

[2017] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation:	Koho Projects Pty Ltd v Byron Shire Council [2017] NSWLEC 1034
Hearing dates:	Conciliation conference on 24 January 2017
Date of orders:	01 February 2017
Decision date:	01 February 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing building and construction of multi-unit housing development - 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:	Koho Projects Pty Ltd (Applicant) Byron Shire Council(Respondent)
Representation:	Mr M Young, solicitor, McCartney Young Lawyers (Applicant) Mr A Seton, solicitor, Marsdens Law Group (Respondent)
File Number(s):	2016/266825
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 10.2016.189.1for the demolition of an existing building and the construction of a multi-unit housing development, including affordable rental housing, at 116 Stuart Street Mullumbimby.

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 Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Plan No.	Description	Prepared by	Dated:
D-E-01	Perspective View	Koho Projects Pty Ltd	10 Dec 2016
D-E-02	Streetscape Elevation	Koho Projects Pty Ltd	10 Dec 2016
D-S-01	Site Plan	Koho Projects Pty Ltd	10 Dec 2016
D-E-03	Elevations	Koho Projects Pty Ltd	10 Dec 2016
D-E-04	Elevations 2	Koho Projects Pty Ltd	10 Dec 2016
D-D-03	Gatehouse Detail	Koho Projects Pty Ltd	10 Dec 2016
D-D-03	Section and Basix	Koho Projects Pty Ltd	4 Jan 2017
D-P-01	Lower Floor Plan	Koho Projects Pty Ltd	10 Dec 2016
D-P-02	Upper Floor Plan	Koho Projects Pty Ltd	10 Dec 2016
D-D-01	Detailed Plan – North	Koho Projects Pty Ltd	9 Dec 2016
D-D-02	Detailed Plan – South	Koho Projects Pty Ltd	9 Dec 2016
D-S-02	Site – Open Space	Koho Projects Pty Ltd	10 Dec 2016
D-S-04	Landscape Concept Plan	Koho Projects Pty Ltd	9 Dec 2016
D-P-03	Roof Plan	Koho Projects Pty Ltd	10 Dec 2016
D-S-00	Block Plan	Koho Projects Pty Ltd	5 Dec 2016
D-S-05	Shadow Analysis 9am	Koho Projects Pty Ltd	5 Dec 2016
D-S-06	Shadow Analysis 12noon	Koho Projects Pty Ltd	5 Dec 2016
D-S-07	Shadow Analysis 3pm	Koho Projects Pty Ltd	5 Dec 2016
Plan of Management V2	Koho Projects	January 2017

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500.00 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. 10.2016.189.1 for a Multi Dwelling Housing development under the State Environmental Planning Policy (Affordable Rental Housing) 2009, comprising eight (8) dwellings, parking for four (4) vehicles and demolition of existing structures, subject to the conditions of consent annexed hereto and marked “A”.

_____________

Commissioner G Brown

266825.16 (C) Annex A gtb (92.7 KB, pdf)