Koresoft Pty Ltd v Byron Shire Council

[2018] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:	Koresoft Pty Ltd v Byron Shire Council [2018] NSWLEC 1180
Hearing dates:	Conciliation conference on 13 April 2018
Date of orders:	13 April 2018
Decision date:	13 April 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 Protection of the Environment Operations Act 1997
Category:	Principal judgment
Parties:	Koresoft Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	Solicitor: Michael Young, McCartney Young Lawyers (Applicant) David Baird, Marsdens Law Group (Respondent)
File Number(s):	2017/325334
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a "Direction to Take Preventative Action" issued under the Protection of the Environment Operations Act 1997 dated 6 October 2017. The Direction relates to the earthworks and sedimentation control at 219 The Saddle Road, Brunswick Heads (Lot 4 DP 810118).

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 Prevention Notice dated 6 October 2017 that is the subject of these proceedings is attached at Annexure “A” (Prevention Notice).

2. The terms of the decision are that the Prevention Notice at Annexure “B” is substituted for the Prevention Notice at Annexure “A”.

3. It is a term of this agreement that each party is to pay its own costs of the proceedings.

4. It is a term of this agreement that the Applicant makes no admissions in entering or consenting to this agreement.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (169 KB, pdf)

Annexure B (206 KB, pdf)

Attachment 1 (1.69 MB, pdf)