McIntosh v Byron Shire Council

[2020] NSWLEC 1624

Land and Environment Court

New South Wales

Medium Neutral Citation:

McIntosh v Byron Shire Council [2020] NSWLEC 1624

Hearing dates:

Conciliation conference on 22 October 2020, 12 and 24 November 2020

Date of orders:

9 December 2020

Decision date:

09 December 2020

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to section 8.18 of the Environmental Planning and Assessment Act 1979, the Stop Use Order and the Demolish Works Order issued on 5 June 2020 is amended so that the Demolish Works Order is deleted, and the Stop Use Order is amended in accordance with the amended Order annexed hereto marked “A”, noting that the Plans 1 of 3, 2 of 3 and 3 of 3 are Annexure A to the Stop Use Order dated 24 November 2020.

Catchwords:

DEVELOPMENT CONTROL ORDERS – demolition and stop use orders – conciliation conference – agreement between the parties – orders

Legislation Cited:

Byron Local Environmental Plan 1988

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Local Government Act 1993

Texts Cited:

Byron Development Control Plan 2010

Category:

Principal judgment

Parties:

Barry McIntosh (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
L Sims (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Stewart & Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/197292

Publication restriction:

No

Judgment

1. COMMISSIONER: The respondent (Council) issued Notice of Proposed Development Control Orders no. 1 and 3 under s 9.34 of the Environmental Planning & Assessment Act 1979 (EPA Act). Subsequently (Council) issued the Orders. The applicant is appealing Orders issued by the Council. The Orders are dated 5 June 2020 and require the cessation of dual residential use within 14 days and demolition of unauthorised works within 45 days at 17 Pacific Street, New Brighton, NSW.

1. the proceedings have been brought to the Court pursuant to s. 8.18 of the EPA Act.

2. the proceedings fall within Class 1 of the Land and Environment Court’s (Court) jurisdiction pursuant to s 17 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court has power to determine the appeal pursuant to s 8.18 of the EPA Act including the power to modify the Orders under s 8.18(4)(b).

4. The Council issued Orders on 5 June pursuant to s. 9.34 of the EPA Act ordering Mr B A McIntosh as the owner of the premises and building at 17 Pacific Street, New Brighton 2483 being Lot 18 in Deposited Plan 8304 to stop the dual use of the residential premises and to demolish certain built works.

Background

2. The subject property is a residential site (Site) with an area of approximately 1231m². The Site is bounded by Marshalls Creek to the west, a residential allotment to the north and a residential allotment to the south. The Site has a frontage to Pacific Street, New Brighton.

3. The Site is zoned under the Byron Local Environmental Plan 1988 (Byron LEP 1988):

1. Part of the Site is in the W1 – Natural Waterways – a rear section of the Site;

2. Part of the Site is in the 7(a) – Wetlands Zone; and

3. Part of the Site is in the 7(f2) – Urban Coastal Land.

4. On 28 February 2020 Council carried out an inspection of the Site and identified unauthorised works as a kitchen on both the ground floor and first floor enabling the dwelling to be used as 2 separate dwellings.

5. Development consent has not been obtained for the use of the premises on the Site for the purposes of two separate dwellings, or for the purpose of a principal and secondary dwelling or a dual occupancy.

6. The Site has been approved to be used for the purposes of a single separate dwelling as per building approval No. 280/79 issued by Byron Shire Council on 12 November 1979.

7. The Site is affected by Flood related development controls in Part K of the Byron Development Control Plan 2010 together with cl 24(3) of Byron LEP 1988.

8. The Court arranged a conciliation conference under s 34(1) Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 October 2020, 12 and 24 November 2020. I presided over the conciliation conference.

9. There was discussion between the parties as to use of the first floor and ground floor of the building on the Site. During the conciliation the applicant made modifications to the first floor of the building by removing the kitchen elements and other items which allowed the dwelling to be used as 2 dwellings. There was some confusion as to exactly what building works had been previously approved by Council. The parties further resolved their dispute by attaching an up to date set of plans to the proposed Orders.

10. 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 amending the Stop Use and Demolish Works Order issued on 5 June 2020. The Stop Use Order is to be amended in its “Reasons for Order” and to annex a copy of plans detailing the current layout of the buildings on the Site. The Demolish Works Order is to be deleted as sufficient works have been deleted to satisfy Council.

Jurisdictional Prerequisites

11. 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 8.18 of the EPA Act to modify the Orders. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The amended development control order is a stop use order, being Order 1 under Part 1 of Schedule 5 to the EPA Act.

2. The respondent has the power to issue a stop use order to the owner of the premises if the premises are being used for a purpose for which a planning approval is required but has not been obtained.

3. The applicant is the owner of the premises the subject of the amended development control order.

4. The premises have been used as two separate dwellings.

5. Use of the premises as two separate dwellings requires development consent in the (f2) (Urban Coastal Land) Zone under Byron LEP 1988.

6. Development consent has not been obtained for use of the premises as two separate dwellings either under the EPA Act or Byron LEP 1988.

7. The Court’s powers on appeal are set out in s 8.18 of the EPA Act which includes the power to modify a development control order (s 8.18(4)(b)).

8. The parties explained how the jurisdictional prerequisites have been satisfied by returning the dual use of the premises to a single use: removal of the kitchenette on the first floor, change the 2 electricity meters to 1 electricity meter for the premises, and removal of the “lock box for keys” for the upstairs part of the premises. These works were carried out by the applicant during the conciliation conference.

12. 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 by the applicant carrying out sufficient works:

• removal of the kitchenette on the first floor;

• changing the 2 separate electricity meters to 1 meter for the whole dwelling; and

• removing the “lock box for keys

to satisfy Council for it to consent to the deletion of Order 2 (demolition works) and modification of Order 1 (dual use order) together with the modification of the Reasons for Order for Order 1, and to enable the Court to modify the Orders in accordance with s 8.18(4)(b) of the EPA Act.

13. 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.

14. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.18 of the Environmental Planning and Assessment Act 1979, the Stop Use Order and the Demolish Works Order issued on 5 June 2020 is amended so that the Demolish Works Order is deleted, and the Stop Use Order is amended in accordance with the amended Order annexed hereto marked “A”, noting that the Plans 1 of 3, 2 of 3 and 3 of 3 are Annexure A to the Stop Use Order dated 24 November 2020.

The Courts notes that the parties have agreed there is no order as to costs.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (649317, pdf)

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Decision last updated: 09 December 2020