Metrocorp Projects (Aust) Pty Ltd v Byron Shire Council

[2022] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:

Metrocorp Projects (Aust) Pty Ltd v Byron Shire Council [2022] NSWLEC 1294

Hearing dates:

Conciliation Conference on 3 June 2022

Date of orders:

3 June 2022

Decision date:

03 June 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

1) The appeal is upheld.

2) Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, the development control order, "Order No. 1”, dated 31 August 2021 and given by the Respondent pursuant to section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 to the Applicant, is revoked.

3) There be no order as to costs.

Catchwords:

APPEAL – development control order – stop use order – conciliation conference – agreement reached – order revoked

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.18, 9.34

Land and Environment Court Act 1979 s 34

Category:

Principal judgment

Parties:

Metrocorp Projects (Aust) Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
M Young (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2021/276212

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development control order issued by Byron Shire Council on 31 August 2021. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. The order is a stop use order, issued pursuant to Item 1 of Part 1 of Schedule 5. It requires the applicant to cease use of a unit, unit 30 at 33-35 Childe Street, Byron Bay, as tourist accommodation. It was issued on the basis that the use of that unit for tourist accommodation was contrary to the development consents that apply to the site. Metrocorp Projects (Aust) Pty Ltd appeals against the order pursuant to s 8.18 of the EPA Act.

2. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 June 2022. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is that the order is revoked.

5. The agreement was reached as the parties agree that all contentions raised in the Statement of Facts and Contentions have now been resolved by the grant of a development consent for the use of unit 30 as tourist accommodation.

6. As the presiding Commissioner, I am satisfied that the decision to make orders to revoke the order is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 8.18(4)(a) of the EPA Act gives the Court the power, on the hearing of the appeal, to revoke the development control order.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

8. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 8.18(4) of the Environmental Planning and Assessment Act 1979, the development control order, "Order No. 1”, dated 31 August 2021 and given by the Respondent pursuant to section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 to the Applicant, is revoked.

3. There be no order as to costs.

……………………….

J Gray

Commissioner of the Court

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Decision last updated: 06 June 2022