Mateer v Byron Shire Council [2021] NSWLEC 1597

Land and Environment Court New South Wales

Medium Neutral Citation: Mateer v Byron Shire Council [2021] NSWLEC 1597 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 [19] Catchwords: Development application – alterations and additions to an existing dwelling – conciliation – agreement – orders Legislation Cited: Byron Local Environmental Plan 2014 cll 6.2, 6.6, Part 2 Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Coastal Management) 2018 cl 14 State Environmental Planning Policy No 55 – Remediation of Land cl 7 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): 2021/163283 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Byron Shire Council (Council) of DA10.2021.197.1 (DA) for alterations and additions to an existing dwelling house being the construction of a garage, removal of an existing retaining wall, construction of new retaining structures and construction of a swimming pool and deck on the land at lot 12 in Deposited Plan 248 861 known as 51 Brownell Drive, Byron Bay (site). 2. Specifically, the proposed development consists of: 1. Construction of a two (2) car garage and associated driveway; 2. Construction of a swimming pool above the garage structure; 3. Associated decking surrounding the proposed swimming pool; 4. Construction of new retaining structures; 5. Construction of new store and lift; and 6. Construction of new access and stairway. 1. 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. 2. The proposed decision was to note that the Applicant had lodged an amended development application and to grant development consent subject to conditions. 3. The amended development application has been lodged on the NSW Planning Portal and on 20 September 2021 the amended development application was lodged with the Court together with an agreement pursuant to s 34 of the Court Act in a satisfactory form giving effect to the agreement in principle. 4. Pursuant to s 34(3) of the Court 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. The parties have provided a helpful jurisdictional statement setting out the matters about which the Court must be satisfied prior to granting development consent.