Schleich v Byron Shire Council

[2020] NSWLEC 1323

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schleich v Byron Shire Council [2020] NSWLEC 1323

Hearing dates:

Conciliation conference on 21 May, 11, 25 June, 9 July 2020; Documents filed 16 July 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to section 180 of the Local Government Act 1993, the Orders the subject of these proceedings, is amended in accordance with the amended Order annexed and marked A.

Catchwords:

ORDER – make premises safe – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979

Local Government Act 1993

Category:

Principal judgment

Parties:

Jay Tobin Schleich (First Applicant)
Holly Schleich (Second Applicant)
Janine Khosid (Third Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
J Maxwell (Solicitor) (Applicants)
C Rose (Solicitor) (Respondent)

Solicitors:
Parker & Kissane (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2020/87294

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 180 of the Local Government Act 1993 (LGA) against the Respondent's issue of Emergency Orders No. 21 dated 21 February 2020 pursuant to s 124 of the LGA (Order) in respect of 3 and 5 Weeronga Way, Ocean Shores (land).

2. The Orders required the Applicants to construct a retaining wall and other necessary drainage works to prevent further failure of the existing retaining wall on the Land following a minor land slip.

3. On 21 May 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). At that conference a path for the resolution of the matter was established, requiring significant consultation between the engineers retained by the parties. The conciliation continued over a number of weeks to allow the engineers to carry out their respective tasks.

4. Ultimately the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to uphold the appeal and modify the order the subject of the appeal.

5. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 16 July 2020 giving effect to the agreement in principle.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 180(4) of the LGA to modify the orders. The parties have stated and I agree on the basis of the material provided that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. the land is not in a safe condition; and

2. the purpose of the orders is to ensure that the land is placed and kept in a safe condition thereby affording protection of life and property and minimising the risk of the slip propagating.

8. 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.

9. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 180(4) of the LGA.

10. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 180 of the Local Government Act 1993, the Orders the subject of these proceedings, is amended in accordance with the amended Order annexed and marked A.

11. The Court notes the agreement between the parties that there be no order as to costs.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (64248, pdf)

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