Mateer v Byron Shire Council [2021] NSWLEC 1596

Land and Environment Court New South Wales

Medium Neutral Citation: Mateer v Byron Shire Council [2021] NSWLEC 1596 Hearing dates: Conciliation conference on 20 August, 10 September 2021 Date of orders: 13 October 2021 Decision date: 13 October 2021 Jurisdiction: Class 1 Before: Clay AC Decision: See [8] Catchwords: DEVELOPMENT CONTROL ORDERS – unlawful works – appeal – conciliation – agreement between the parties – orders varying orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 8.18, 9.34, 9.35, Schedule 5 Land and Environment Court Act 1979 s 34 Category: Principal judgment Parties: Rianon Mateer (Applicant) Byron Shire Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent)

Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/58919 Publication restriction: Nil

Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against a Development Control Order (order) dated 5 February 2021 being Orders 3 and 10 in Part 1 of the Table to Schedule 5 of the EP&A Act pursuant to ss 9.34 and 9.35 of the EP&A Act in respect of the land being Lot 12 in Deposited Plan 248861 known as 51 Brownell Drive, Byron Bay (land). 2. The order required the Applicant to demolish certain work said to have been unlawfully carried out and restore the land to its prior condition. 3. On 20 August and 10 September 2021, I presided over a conciliation conference between the parties pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act). At the conciliation conference, the parties reached an agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. On 20 September 2021 the parties filed an agreement giving effect to the agreement in principle. 4. 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. 5. The parties' agreement involves the Court exercising the function under s 8.18(4)(b) of the EP&A Act to modify the order. I am satisfied by reference to its terms that the proposed order is one which the Council could have given. 6. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 7. The parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 8. The Court orders: 1. The appeal is upheld. 2. The terms of the Development Control Order issued by the Respondent to the Applicant under section 9.34 and Schedule 5 of the Environmental Planning and Assessment Act 1979 on 5 February 2021 ("Order") in relation to the premises at Lot 12 DP248861, 51 Brownell Drive, Byron Bay NSW 2481 is modified as follows: "Demolish Works Order The terms of the Demolish Works Order are that Mr R Mateer must: 1. Demolish the sandstone retaining wall. 2. Prior to demolition works commencing, engage a suitably qualified geotechnical engineer to provide appropriate measures to stabilise the site and prevent landslip while demolition works are being undertaken. 3. A Traffic Management Plan must be implemented for any activity required within Council's road reserve to comply with the Demolish Works Order. The Traffic Management Plan must be prepared and implemented by a RMS accredited person in accordance with the RMS "Traffic Control at Work Sites" Technical Manual. Period for compliance with Demolish Works Order The Demolish Works Order must be complied with within 90 days of the date of this Order 2 years of the date of the modified Order. Reasons for Order 1. The sandstone retaining wall and associated earthworks require development consent and development consent under the Environmental Planning and Assessment Act 1979 has not been obtained for these works. An Emergency Order Number 21 under the Local Government Act 1993 was issued on 17 December 2020 requiring you to stabilise earthworks on the land as an interim measure until a long term solution can be implemented. This Emergency Order clearly stipulated that any permanent works and/or construction as a long term solution require the lodgement of a development application to seek development consent. 2. To protect life and property. Restore Works Order The terms of the Restore Works Order are that Mr R Mateer must: 1. Following demolition of the sandstone retaining wall outlined within the Demolish Works Order, the land must be retained and work in accordance with a lawful development consent carried out to that part of the land where the sandstone retaining wall was located or should such development consent not be in force or acted upon the land must be restored to its condition before the unauthorised sandstone retaining wall was constructed and before the associated earthworks were carried out. 2. Maintain measures to stabilise the site and prevent landslip (as outlined within the Demolish Works Order) during restoration works. 3. A Traffic Management Plan must be implemented for any activity required within Council's road reserve to comply with the Restore Works Order. The Traffic Management Plan must be prepared and implemented by a RMS accredited person in accordance with the RMS "Traffic Control at Work Sites" Technical Manual. 4. Upon completion of restoration works, certification must be provided from a geotechnical engineer demonstrating that the site is low risk as defined in "The Australian GeoGuides for Slope Management and Maintenance" Ref AGS (2007c & d). Certification of these completed works must be provided to Council. Period for compliance with Restore Works Order The Restore Works Order must be complied with within 120 days of the date of this Order 3 months of compliance with the Demolish Works Order. Reasons for Order 1. The sandstone retaining wall and associated earthworks require development consent and development consent under the Environmental Planning and Assessment Act 1979 has not been obtained for these works." 1. The Court notes: 1. As a consequence of order (2) the order is in the form of the Order annexed as Annexure A. 2. The agreement between the parties that each party is to pay its own costs of the proceedings ………………………… P Clay Acting Commissioner of the Court Annexure A (148637, pdf)