Siddle v NSW Transitional Coastal Panel

[2018] NSWLEC 1383

Land and Environment Court

New South Wales

Medium Neutral Citation:	Siddle v NSW Transitional Coastal Panel [2018] NSWLEC 1383
Hearing dates:	Conciliation conference on 28 and 29 June 2018, 20 July 2018
Date of orders:	26 July 2018
Decision date:	26 July 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Michael Siddle (Applicant) NSW Transitional Coastal Panel (Respondent)
Representation:	Counsel: T Howard SC (Applicant) Duggan SC (Respondent) Solicitors: Addisons Lawyers (Applicant) Beatty Legal Pty Ltd (Respondent)
File Number(s):	2017/281164
Publication restriction:	Nil

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, being a decision that the Court could have made in the proper exercise of its functions.

4. The Court notes that the amended plans which the Court granted leave to the Applicant to rely upon on 31 May 2018 were publicly notified by letter of 4 June 2018. The letters of 4 June 2018 also notified members of the public of the s.34 conference and informed that they were entitled to attend. No member of the public attended the s34 conciliation conference. Government agencies were notified of the amended plans by letter of 5 June 2018.

5. The Court also notes that it has been provided with a letter from Byron Shire Council to the NSW Coastal Panel dated 27 June 2018 regarding approval required under s 138 of the Roads Act 1993 (NSW) by Byron Shire Council. The Council declined to provide general terms of approval as it is still carrying out its assessment, however, it acknowledged the Court’s power under s 8.14(4) of the EPA Act to determine the appeal. Council provided conditions and requested that they be inserted into any negotiated consent. Conditions 3(e), 4 and 8 in Annexure ‘A’ incorporate the conditions provided by Council, with some amendments taking into account the nature of the development.

6. 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.

7. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Application number CP 17-004 to undertake repairs to the existing seawall located on the Council Road Reserve immediately to the Northeast of 28 and 28A Childe Street, Byron Bay NSW 2481 (being Lots 32, 33 and 36 in Section 2 of Deposited Plan 1623 and Lot 101 in Deposited Plan 1241833) is approved subject to the conditions found in Annexure ‘A’.

3. Each party is to bear its own costs of these proceedings.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (C)