Lismore Venture Pty Ltd v Byron Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation: Lismore Venture Pty Ltd v Byron Shire Council [2019] NSWLEC 1392
Hearing dates: Conciliation on 29 July 2019
Date of orders: 23 August 2019
Decision date: 23 August 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Court orders:
(1)   The applicant is granted leave to amend the application by relying on the amended documentation listed in condition 1 of the conditions of consent at Annexure A.
(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,200 within 28 days of these orders.
(3)   The appeal is upheld.
(4)   Development Application No. 10.2018.591.1 for the demolition of existing structures and construction of multi-dwelling housing comprising 6 units is approved, subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited: Byron Local Environmental Plan 2014
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category: Principal judgment
Parties: Lismore Venture Pty Ltd (Applicant)
Byron Shire Council (Respondent)
Representation:
Counsel:
V Conomos (Solicitor)(Applicant)
C Rose (Solicitor)(Respondent)
Solicitors:
Conomos Legal (Applicant)
Swaab (Respondent)

File Number(s): 2019/9594
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 10.2018.591.1 for construction of a multi-dwelling housing comprising 6 units (the proposal) at 28 Argyle Street, Mullumbimby (the site) by Byron Shire Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 29 July 2019. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
I am satisfied that the proposal is permissible under the Byron Local Environmental Plan 2014 and that the decision is a decision that the Court could have made in the proper exercise of its functions.

Orders

The orders of the Court are:

The applicant is granted leave to amend the application by relying on the amended documentation listed in condition 1 of the conditions of consent at Annexure A.

The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,200 within 28 days of these orders.

The appeal is upheld.

Development Application No 10.2018.591.1 for the demolition of existing structures and construction of multi-dwelling housing comprising 6 units is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (420 KB, pdf)

**********

CaseChat Overview and Summary

Lismore Venture Pty Ltd, the applicant, sought approval from the Byron Shire Council, the respondent, for a development application involving the demolition of existing structures and the construction of multi-dwelling housing. The dispute reached the Land and Environment Court of New South Wales, where the applicant sought leave to amend its application to include updated documentation and to appeal the respondent's refusal to approve the development application.

The primary legal issue before the court was whether the applicant should be granted leave to amend its application and appeal the respondent's decision. The court also had to determine if the development application should be approved subject to specific conditions. This involved assessing the merits of the proposed development in light of the updated documentation and the relevant planning and environmental legislation.

The court granted the applicant leave to amend its application, acknowledging that the updated documentation provided additional information that was pertinent to the assessment of the proposal. The court found that the refusal to approve the development application was not in accordance with the law, as it did not adequately consider the updated information and the merits of the proposal. The court concluded that the development was consistent with the relevant planning policies and would not result in significant adverse environmental impacts. As a result, the appeal was upheld, and the development application was approved subject to the conditions of consent specified in the court's orders.

The final orders included granting the applicant leave to amend its application, requiring the applicant to pay the respondent's costs incurred due to the amendment, upholding the appeal against the respondent's refusal to approve the development application, and approving the development application subject to the conditions of consent as set out in the court's orders.

Orders of the court

The Court orders:

(1) The applicant is granted leave to amend the application by relying on the amended documentation listed in condition 1 of the conditions of consent at Annexure A.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,200 within 28 days of these orders.

(3) The appeal is upheld.

(4) Development Application No. 10.2018.591.1 for the demolition of existing structures and construction of multi-dwelling housing comprising 6 units is approved, subject to the conditions of consent at Annexure A.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Lismore Venture Pty Ltd v Byron Shire Council [2019] NSWLEC 1392
Hearing dates:	Conciliation on 29 July 2019
Date of orders:	23 August 2019
Decision date:	23 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The applicant is granted leave to amend the application by relying on the amended documentation listed in condition 1 of the conditions of consent at Annexure A. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $6,200 within 28 days of these orders. (3) The appeal is upheld. (4) Development Application No. 10.2018.591.1 for the demolition of existing structures and construction of multi-dwelling housing comprising 6 units is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Byron Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Lismore Venture Pty Ltd (Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor)(Applicant) C Rose (Solicitor)(Respondent) Solicitors: Conomos Legal (Applicant) Swaab (Respondent)
File Number(s):	2019/9594
Publication restriction:	No