Land and Environment Court New South Wales Medium Neutral Citation: Koho Projects Pty Ltd v Byron Shire Council [2017] NSWLEC 1034 Hearing dates: Conciliation conference on 24 January 2017 Date of orders: 01 February 2017 Decision date: 01 February 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing building and construction of multi-unit housing development - conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Koho Projects Pty Ltd (Applicant) Byron Shire Council(Respondent) Representation: Mr M Young, solicitor, McCartney Young Lawyers (Applicant) Mr A Seton, solicitor, Marsdens Law Group (Respondent) File Number(s): 2016/266825 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. 10.2016.189.1for the demolition of an existing building and the construction of a multi-unit housing development, including affordable rental housing, at 116 Stuart Street Mullumbimby. 2. 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". 3. 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. 4. 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. 5. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Plan No. Description Prepared by Dated: D-E-01 Perspective View Koho Projects Pty Ltd 10 Dec 2016 D-E-02 Streetscape Elevation Koho Projects Pty Ltd 10 Dec 2016 D-S-01 Site Plan Koho Projects Pty Ltd 10 Dec 2016 D-E-03 Elevations Koho Projects Pty Ltd 10 Dec 2016 D-E-04 Elevations 2 Koho Projects Pty Ltd 10 Dec 2016 D-D-03 Gatehouse Detail Koho Projects Pty Ltd 10 Dec 2016 D-D-03 Section and Basix Koho Projects Pty Ltd 4 Jan 2017 D-P-01 Lower Floor Plan Koho Projects Pty Ltd 10 Dec 2016 D-P-02 Upper Floor Plan Koho Projects Pty Ltd 10 Dec 2016 D-D-01 Detailed Plan – North Koho Projects Pty Ltd 9 Dec 2016 D-D-02 Detailed Plan – South Koho Projects Pty Ltd 9 Dec 2016 D-S-02 Site – Open Space Koho Projects Pty Ltd 10 Dec 2016 D-S-04 Landscape Concept Plan Koho Projects Pty Ltd 9 Dec 2016 D-P-03 Roof Plan Koho Projects Pty Ltd 10 Dec 2016 D-S-00 Block Plan Koho Projects Pty Ltd 5 Dec 2016 D-S-05 Shadow Analysis 9am Koho Projects Pty Ltd 5 Dec 2016 D-S-06 Shadow Analysis 12noon Koho Projects Pty Ltd 5 Dec 2016 D-S-07 Shadow Analysis 3pm Koho Projects Pty Ltd 5 Dec 2016 Plan of Management V2 Koho Projects January 2017 1. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $7,500.00 within 28 days of the date of these orders. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 10.2016.189.1 for a Multi Dwelling Housing development under the State Environmental Planning Policy (Affordable Rental Housing) 2009, comprising eight (8) dwellings, parking for four (4) vehicles and demolition of existing structures, subject to the conditions of consent annexed hereto and marked "A". _____________ Commissioner G Brown 266825.16 (C) Annex A gtb (92.7 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2017