Wookey v Byron Shire Council - [2022] NSWLEC 1650

Land and Environment Court

New South Wales

Medium Neutral Citation: Wookey v Byron Shire Council [2022] NSWLEC 1650
Hearing dates: 2 November 2022
Date of orders: 25 November 2022
Decision date: 25 November 2022
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) Order No. 1 in Schedule 5 of the Environmental Planning and Assessment Act 1979 requiring the Applicant to stop use of the cabin located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW dated 18 January 2022 is confirmed.
(3) All exhibits are retained.

Catchwords:
STOP USE ORDER – use of residential cabin without development consent

Legislation Cited:
Byron Local Environmental Plan 1988
Byron Local Environmental Plan 2014
Conveyancing Act 1919, s 88B
Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.68, 8.18, 9.34, Sch 5
Interim Development Order No. 1 – Byron Shire Council 1968
Land and Environment Court Act 1979, ss 17, 39, 63
Local Government Act 1993
National Parks and Wildlife Act 1974
Rural Fires Act 1997

Cases Cited:
Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383
Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98

Texts Cited:
Building Code of Australia
Byron Development Control Plan 2010
Byron Development Control Plan 2014
NSW Rural Fire Service: Planning for Bushfire Protection (2019)

Category: Principal judgment
Parties: Robin Wookey (Applicant)
Byron Shire Council (Respondent)
Representation:
Counsel:
B Webster (Agent) (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
B Webster (Agent) (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2022/50854
Publication restriction: Nil

Judgment

COMMISSIONER: The Applicant is appealing an Order issued by the Respondent on 18 January 2022 pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act), being Order No. 1 in Sch 5 (Stop Use Order) to the EPA Act requiring the Applicant to stop use of the cabin (Cabin) located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW, having an area of approximately 41.2ha (Site).
The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The power or function of the Court in these proceedings is s 39(2) of the LEC Act and s 8.18(4) of the EPA Act.
The Applicant filed a letter dated 31 October 2022 appointing Benjamin Webster as his agent in these proceedings (Ex A: Agent’s letter 31/10/22). In accordance with s 63 of the LEC Act I granted Mr Webster leave to appear as agent for the Applicant. I note Mr Webster was the tenant residing in the Cabin when the Stop Use Order was served by the Respondent.
The topography of the Site is very steep and slopes upwards from Lacks Creek on the north eastern boundary at an elevation of approximately 120m AHD, up to Skyline Road on the south western boundary to an elevation of approximately 350m AHD. The Site is substantially vegetated with much of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Wookey v Byron Shire Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 1650
Decision Date: 25 November 2022

CaseChat Overview and Summary

Wookey v Byron Shire Council involved the applicant challenging an order made by the Byron Shire Council to cease using a cabin on his property. The case was heard in the Land and Environment Court of New South Wales. The applicant argued that the council's decision was not in accordance with the law and was unjust. The council maintained that the use of the cabin was in breach of the Environmental Planning and Assessment Act 1979 and that the order to cease use was necessary to protect the environment.

The central legal issue was whether the council's decision was lawful and whether the order to stop using the cabin was justified. The court had to consider whether the council had the authority to make such an order and whether the order was in accordance with the relevant legislation. The applicant argued that the council had overstepped its authority and that the order was arbitrary and capricious. The council, on the other hand, maintained that it had the necessary powers under the Environmental Planning and Assessment Act 1979 to make the order and that it was necessary to protect the environment.

The court found that the council had the authority to make the order under the Environmental Planning and Assessment Act 1979. The court held that the council's decision was not arbitrary or capricious and was in accordance with the law. The court found that the use of the cabin was in breach of the relevant planning instruments and that the order to cease use was necessary to protect the environment. The court dismissed the applicant's appeal and confirmed the council's order.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Order No. 1 in Schedule 5 of the Environmental Planning and Assessment Act 1979 requiring the Applicant to stop use of the cabin located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW dated 18 January 2022 is confirmed.

(3) All exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wookey v Byron Shire Council [2022] NSWLEC 1650
Hearing dates:	2 November 2022
Date of orders:	25 November 2022
Decision date:	25 November 2022
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) Order No. 1 in Schedule 5 of the Environmental Planning and Assessment Act 1979 requiring the Applicant to stop use of the cabin located on Lot 2 in Deposited Plan 208063 Skyline Road Middle Pocket NSW dated 18 January 2022 is confirmed. (3) All exhibits are retained.
Catchwords:	STOP USE ORDER – use of residential cabin without development consent
Legislation Cited:	Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 Conveyancing Act 1919, s 88B Environmental Planning and Assessment Act 1979, ss 4.65, 4.66, 4.68, 8.18, 9.34, Sch 5 Interim Development Order No. 1 – Byron Shire Council 1968 Land and Environment Court Act 1979, ss 17, 39, 63 Local Government Act 1993 National Parks and Wildlife Act 1974 Rural Fires Act 1997
Cases Cited:	Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98
Texts Cited:	Building Code of Australia Byron Development Control Plan 2010 Byron Development Control Plan 2014 NSW Rural Fire Service: Planning for Bushfire Protection (2019)
Category:	Principal judgment
Parties:	Robin Wookey (Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: B Webster (Agent) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: B Webster (Agent) (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2022/50854
Publication restriction:	Nil