Minahan v Byron Shire Council

[2024] NSWLEC 1531

Land and Environment Court

New South Wales

Medium Neutral Citation:

Minahan v Byron Shire Council [2024] NSWLEC 1531

Hearing dates:

Conciliation conference on 19 August 2024

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1) The appeal is upheld.

(2)   Development Consent 10.2019.448.1 for a dwelling house and swimming pool at 48 Myocum Ridge Road, Myocum is modified in the terms in Annexure A.

(3) Development Consent 10.2019.448.1, as modified by the Court, is Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s 34

Byron Local Environmental Plan 1988

Byron Local Environmental Plan 2014

Cases Cited:

North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Texts Cited:

Byron Shire Council Community Participation Plan (October 2019)

Category:

Principal judgment

Parties:

Craig Minahan (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
M Seymour SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2024/159528

Publication restriction:

No

Judgment

1. COMMISSIONER: This judgment relates to an appeal brought by the applicant under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Byron Shire Council (Council) of modification application No 10.2019.448.5 (the MA). The MA seeks to modify development consent No 10.2019.448.1 (the Consent), which was approved by Council on 28 April 2020 for a dwelling house and swimming pool on the land at 48 Myocum Ridge Road, Myocum (site).

2. More particularly, the MA seeks to modify the conditions of the Consent by deleting (or replacing) certain conditions relating to the upgrade of Myocum Ridge Road.

3. The Consent has been modified a number of times since the original grant.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 August 2024. In the course of the conciliation conference, the parties came to an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. This decision involved the Court upholding the appeal and granting consent to the MA with associated modifications to conditions in the Consent.

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.

7. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the Consent. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties’ sought to assist here by providing the Court with an agreed “note on jurisdictional facts”, dealing with the particulars of why the parties believe the decision is one that the court can make in the proper exercise of its function. Assisted by this advice, I find that the parties’ decision is open for the Court to make. The reasoning for this finding is outlined in the next section.

Jurisdiction

Section 4.55(2) of the EPA Act

8. Having direct regard to the provisions of s 4.55(2) of the EPA Act, I can readily find that I agree with the parties’ note on jurisdictional facts and I am satisfied in regard to each of the following matters.

Development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)

9. I accept the advice of the parties that the modified consent would continue to permit the development of the subject property for the purposes of a dwelling house and pool and the access to the development would still be possible from either Myocum Ridge Road or the approved internal driveway. Access to the subject property will remain from the public road network. From both a qualitative and quantitative perspective the modification of the consent will permit that access and results in a development, as modified, that is substantially the same as that for which consent was originally granted.

Notification and consideration

10. I accept the advice of the parties that under Byron Shire Council Community Participation Plan October 2019 the MA was not required to be notified and, accordingly, no objections were received. There was consultation with NSW Crown Lands, which is outlined in Council’s bundle of documents filed on 14 August 2024 (pp 148 - 162). I have considered the relevant exchange as required under s 4.55(2)(d) of the EPA Act.

Section 4.55(3) of the EPA Act

11. Mindful of s 4.55(3) of the EPA Act, the parties advise in their note of the consideration of relevant matters under s 4.15(1) of the EPA Act. Here I am mindful of the findings in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 at 418D; [1998] NSWSC 163 which limit the need for jurisdictional findings of the Court in any event when considering the evaluative criteria for modification applications. In this case, I can confirm there are no matters that arise which require a jurisdictional finding of the Court. The use of the land for the purposes of a dwelling is a use that is expressly permissible with consent in the 7(d) Scenic Escarpment Zone of Byron Local Environmental Plan 1988 and RU1 Primary Production zone under Byron Local Environmental Plan 2014. That use will not change as a consequence of the modifications of conditions relating to the process by which approval is to be obtained for means of access.

12. There is a further requirement at s 4.55(3) of the EPA Act to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The Council’s bundle provides the Consent instrument which does nominate “reasons for conditions”, which I have considered. There is also a copy of the evaluation report behind the Consent in Council’s bundle which I have also taken into consideration. Nothing of particular importance arises in either instance.

Conclusion and Orders

13. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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

15. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b) of the LEC Act). The final orders have this effect.

Orders

16. The Court orders:

1. The appeal is upheld.

2. Development Consent 10.2019.448.1 for a dwelling house and swimming pool at 48 Myocum Ridge Road, Myocum is modified in the terms in Annexure A.

3. Development Consent 10.2019.448.1, as modified by the Court, is Annexure B.

P Walsh

Commissioner of the Court 

Annexure A

Annexure B

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Decision last updated: 29 August 2024