Malta-Fell v Byron Shire Council

[2020] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:

Malta-Fell v Byron Shire Council [2020] NSWLEC 1448

Hearing dates:

Conciliation conference on 17 August 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Refer to orders at [12]

Catchwords:

DEVELOPMENT APPLICATION – 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:

Dustin Marta-Fell (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
M Young (Solicitor) (Applicant)
P Vergotis (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
McCabe Curwood (Respondent)

File Number(s):

2019/384646

Publication restriction:

No

Judgment

1. COMMISSIONER: Dustin Malta-Fell (the Applicant) has appealed Byron Shire Council’s (the Respondent’s) refusal of an application for a Building Information Certificate (BIC) (Application No. 50.2019.38) which was lodged on 17 October 2019 (Application). The Application relates to the property located at 251 Upper Wilsons Creek Road, Upper Wilsons Creek (Lot 1 DP 814747) (the Subject Site).

2. The Application relates to the following structures located on the Property:

1. a single storey timber and ‘hardiplank’ clad building;

2. associated on-site sewage management system;

3. a rainwater tank; and

4. rock retaining walls in the vicinity of the timber and ‘hardiplank’ clad building.

3. The appeal comes to the Court pursuant to s 8.25(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

4. These proceedings are determined pursuant to the provisions of s 8.25(3) of the EP&A Act.

5. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 17 August 2020, and I presided over that conciliation conference.

6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. 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.

8. The Respondent has advised that, in its opinion, the matters that arise for consideration under s 6.25(1) of the EP&A Act are satisfied having regard to the information that was provided within the Applicant’s application for a Building Information Certificate (BIC) (Application No. 50.2019.38), together with the additional information that accompanies the Parties’ agreement in this matter.

9. The Parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 39 of the LEC Act.

10. I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

12. The Court orders that:

1. The Applicant is granted leave to rely upon the following plans and additional documentation

1. The plans prepared by Pitts Built titled “Proposed Farm Shed Wilsons Creek”, drawings A01 and A02 dated 1 September 2020.

2. The report prepared by Lucena Civil & Structural Engineers titled “Peer Review of Engineering Certificates for Building and retaining wall construction at 251 Upper Wilsons Creek Road Upper Wilsons Creek”, dated 8 September 2020.

2. The Applicant is to undertake the work required in the plans referred to in paragraph (1)(a) above within 60 days of the date of these orders, such work including but not limited to:

1. the replacement of the window and door on the northern elevation of the structure with a sliding glass door and return.

2. the deck at the northern end of the structure is to be removed.

3. the replacement of the windows and doors on the eastern elevation of the structure with roller doors.

4. the placement of ramps in front of the roller doors.

5. the removal of any air conditioning condenser and the satellite dish on the roof.

3. The appeal is upheld.

4. The Respondent is directed to issue within 14 days of the date of these orders, a building information certificate in respect of the structure located at 251 Upper Wilsons Creek Road, Upper Wilsons Creek (Lot 1 DP 814747).

……………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 24 September 2020