McKeon v Byron Shire Council

[2025] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:

McKeon v Byron Shire Council [2025] NSWLEC 1495

Hearing dates:

Conciliation conference held on 8 July 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, the Order number 11 the subject of these proceedings is revoked.

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – order to be revoked – invalid order - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, pt 1 sch 5

Land and Environment Court Act 1979, s 34

Cases Cited:

Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39

Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59

Category:

Principal judgment

Parties:

Jake McKeon (Applicant)
Byron Bay Shire Council (Respondent)

Representation:

Counsel:
J McKeon (self represented) (Applicant)
M Meir (Solicitor)(Respondent)
Solicitors:
Byron Bay Shire Council (Respondent)

File Number(s):

2025/108933

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the Respondent's issue of a Development Control Order number 11 (compliance order) pursuant to s 9.34(1)(a) and Part 1 of Schedule 5 (DCO) to the Applicant in respect of lot 38 in DP 271003 and known as 2/31 Hayters Drive, Suffolk Park (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 8 July 2025. I presided over the conciliation conference.

3. The Applicant owns the Site which is currently tenanted and the tenant keeps a dog on the Site. The DCO required the Applicant to:

Comply with Condition 1 of development consent 10.2007.286.3 by removing any dog or dogs from the Premises.

4. The Respondent agrees that the DCO should be revoked because it is an invalid order.

5. 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 revoking the DCO.

6. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

7. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to revoke a development control order.

8. 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 the terms of s 8.18 of the EPA Act to revoke a development control order on the basis of it being an invalid order pursuant to the terms of s 9.34 of the EPA Act. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the court.

9. The Site is a lot within a community title subdivision in Suffolk Park pursuant to Development consent 10.2007.286.3 (originally issued as consent 10.2007.286.1 but subsequently modified) (Subdivision Consent) being for:

“Community title subdivision incorporating one (1) community lot and thirty-four (34) dwelling lots.”

10. The dwelling on the Site was constructed pursuant to development consent 10.2019.79.1 (Dwelling Consent) being for a:

“dwelling house and swimming pool”

11. The conditions of consent for the Subdivision Consent includes Condition 1 which states:

1. Development is to be in accordance with approved plans

The development is to be in accordance with the following documents as modified by any conditions of this consent:

Description                Author Plan No. & Date

… … …

Draft Community Management Statement    Hinterland Legal Solicitors –

12. The Community Management Statement referred to in Consent condition 1 contains cl 25 (By-Law 25). Relevantly, cl 25.1 states:

25. KEEPING OF ANIMALS

25.1 Cats and Dogs must not be kept on any Lot or part of the Community Parcel.

13. The Dwelling Consent does not contain a condition requiring the development to comply with By-Law 25.

14. The jurisdictional pre-requisites of relevance to the proceedings relate to the EPA Act’s provisions regarding development control orders (Kingfisher Properties Pty Limited v Northern Beaches Council [2025] NSWLEC 39 at [24]). The Court, on appeal, has the power to revoke a development control order pursuant to s 8.18(4)(a) of the EPA.

15. The circumstances necessary to enliven the power to issue the Order do not exist. I reproduce the relevant extract from the Table of Part 1 to Schedule 5 of the EPA Act (the Table) below:

Column 1	Column 2	Column 3
To do what?	When?	To whom?
11	Compliance Order To comply with a planning approval for the carrying out of works	A planning approval has not been complied with	• The owner of the premises • Any person entitled to act on a planning approval or acting in contravention of a planning approval
To do whatever is necessary so that any building or part of a building that has been unlawfully erected complies with relevant development standards	Building has been unlawfully erected and does not comply with relevant development standards.	The owner of the premises
To carry out works associated with subdivision	Authorised subdivision works, or works agreed to by the applicant, have not been carried out.	The person required to carry out the works

16. The DCO could be issued against the Applicant as the Premises’ owner as under Column 3 in the Table. However, the relevant circumstances in Column 1 of the Table regarding the Order do not exist because the Applicant permitting a dog on the Premises does not constitute a form of ‘works’ the subject of a planning approval for the carrying out of works.

17. The relevant circumstances in Column 2 regarding the Order do not exist. The Applicant permitting a dog on the Premises contrary to By-Law 25 is not non-compliance with the relevant planning approval, namely the Subdivision Consent.

18. There is no modification the Court could make to the DCO under s 8.18 (4)(b) of the EPA Act to make it a valid order number 11 under the Table in relation to the Subdivision Consent because the Subdivision Consent is for the subdivision of land, rather than its use: Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59 at [42]-[43].

19. The only other potentially relevant order in the Table in relation to the Subdivision Consent is order number one (stop use order) which I reproduce below as extracted from the Table:

1 Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises Premises are being used— •  for a prohibited purpose, or •  for a purpose for which a planning approval is required but has not been obtained, or •  in contravention of a planning approval. Building is being used— • inconsistently with its classification under this Act or the Local Government Act 1993, and • in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— • constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and • is not regulated or controlled under any other Act by a public authority. The owner of the premises The person using the premises or building

20. The circumstances in Column 1 regarding a stop use order exist. A stop use order to stop using the Premises to keep a dog, could be issued against the Applicant as the Premises’ owner under Column 3 in the Table. However, the relevant circumstances in Column 2 regarding a stop use order do not exist.

21. The Applicant, permitting his tenant to keep a dog on the Site contrary to By-Law 25 is not noncompliance with the relevant planning approval, namely the Subdivision Consent (Hillpalm at [42]- [43]).

22. There is no valid, substituted order the Court could make under the Table pursuant to s 8.18(4)(c) of the EPA Act in relation to the Subdivision Consent. Nor could the Court issue a modified order or a substituted order requiring compliance with the Dwelling Consent due to the Applicant’s breach of By-Law 25 because, as noted above, the Dwelling Consent does not contain a condition requiring that the dwelling development be carried out in accordance with By-Law 25.

23. 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. I adopt the reasons given by the parties.

24. 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.

Orders:

25. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, the Order number 11 the subject of these proceedings is revoked.

E Espinosa

Commissioner of the Court

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Decision last updated: 15 July 2025