Zimmer-Gembeck v Byron Shire Council

[2022] NSWLEC 1109

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zimmer-Gembeck v Byron Shire Council [2022] NSWLEC 1109

Hearing dates:

Conciliation conference on 14 January and 25 February 2022

Date of orders:

03 March 2022

Decision date:

03 March 2022

Jurisdiction:

Class 3

Before:

Espinosa C

Decision:

The Court orders that:

1) The appeal is upheld.

2) The Development Control Order No. 10 issued to the Applicant on 17 September 2021 by Byron Bay Shire Council in relation to lot 6 in SP 68222, known as 6/102-104 Centennial Circuit Byron Bay 2481 is revoked.

3) There is no order as to costs.

Catchwords:

APPEAL – development control order – building information certificate - conciliation conference – agreement between the parties - orders

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:

Melanie Zimmer-Gembeck (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
S Tanttari (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

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

File Number(s):

2021/291177

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against a development control order issued by the Respondent pursuant to s 9.34 of the EPA Act being Order No.10 to restore works (the Development Control Order) pertaining to 6/102-104 Centennial Circuit Byron Bay legally described as Lot 6, SP 68222 (the Site) in the following terms:

1. Remove all unauthorised building and plumbing works, including any fixtures, that have been undertaken on the ground floor of the premises which is not in accordance with the attached approved plans.

2. Restore all unauthorised works on the ground floor of the premises to the attached approved plans.

3. Remove all unauthorised building and plumbing works, including any fixtures, that have been undertaken on the mezzanine floor of the premises not in accordance with attached approved plans.

4. Restore all unauthorised works on the mezzanine floor of the premises to the attached approved plans.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 14 January and 25 February 2022. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and revoking the Development Control Order.

4. 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. The parties’ decision involves the Court exercising the function under s 8.18 of the EPA Act to revoke the Development Control Order.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 8.18 of the EPA Act to revoke a development control order.

6. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Statement of Reasons and state that the Building Information Certificate submitted by the Applicant which was approved by the Respondent on 22 February 2022, addresses the substantive concerns raised by the Respondent in the Development Control Order.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act because the orders sought by the parties are consistent with the powers of the Court set out in s 8.18(4) of the EPA Act in the circumstances of the approval of the Building Information Certificate by the Respondent.

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.

Orders:

9. The Court orders:

1. The appeal is upheld.

2. The Development Control Order No. 10 issued to the Applicant on 17 September 2021 by Byron Bay Shire Council in relation to lot 6 in SP 68222, known as 6/102-104 Centennial Circuit Byron Bay 2481 is revoked.

3. There is no order as to costs.

……………………….

E Espinosa

Commissioner of the Court

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