Land and Environment Court New South Wales Medium Neutral Citation: Ardill Payne & Partners v Byron Shire Council [2018] NSWLEC 1419 Hearing dates: Conciliation conference on 6 August 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Class 1 Before: Dixon SC Decision: See [4] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Ardill Payne & Partners (Applicant) Byron Shire Council (Respondent) Representation: Solicitors: M Young, McCartney Young Lawyers (Applicant) P Hudson, Marsdens Law Group (Respondent) File Number(s): 2018/34091 Publication restriction: No Judgment 1. COMMISSIONER: 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". 2. 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. 3. 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. 4. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. Leave is granted to the Applicant to amend Development Application No.10.2017.639.1 (the DA) by substituting the following plans for the plans that are the subject of the DA: Plan No. Description Prepared by Dated: 01 Rev B Cover sheet, area schedule Byron Bay Drafting 26/06/2018 02 Rev B Site (survey) plan Byron Bay Drafting 26/06/2018 03 Rev B Site plan Byron Bay Drafting 26/06/2018 04 Rev B Ground floor plan Byron Bay Drafting 26/06/2018 05 Rev B Roof plan Byron Bay Drafting 26/06/2018 06 Rev B Sections (1 and 2) Byron Bay Drafting 26/06/2018 07 Rev B Elevations (east and south) Byron Bay Drafting 26/06/2018 08 Rev B Elevations (west and north) Byron Bay Drafting 26/06/2018 09 Rev B Landscape plan, Street elevation Byron Bay Drafting 26/06/2018 1. The Applicant's written request lodged pursuant to clause 4.6 of the Byron Local Environmental Plan 2014 seeking to contravene the development standard in clause 4.1E of the Byron Local Environmental Plan 2014 is upheld. 2. The appeal is upheld. 3. Development Application No.10.2017.639.1 for alterations and additions to an existing dwelling house and the erection of a single storey detached dwelling house (to comprise a dual occupancy on the site) with a car port and car space, including vehicular access to the rear new dwelling via a driveway from Kallaroo Circuit, on the land at 33 Kallaroo Circuit, Ocean Shores (known as Lot 2083 DP 808462), is approved subject to the conditions of consent at Annexure "A". ………………………. Susan Dixon Senior Commissioner of the Court Annexure A (294 KB, pdf) Plans (1.07 MB, 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: 09 August 2018