McIntosh v Byron Shire Council [2020] NSWLEC 1624

McIntosh v Byron Shire Council [2020] NSWLEC 1624

Because the applicant had carried out sufficient works to return the premises to single residential use and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision by upholding the appeal, deleting the Demolish Works Order and amending the Stop Use Order under s 8.18 of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
09 December 2020
Procedural Posture
Class 1 Appeal Against Development Control Orders / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; Demolish Works Order deleted; Stop Use Order amended; no order as to costs by agreement.
Legal Topics
['stop Use Order' 'demolish Works Order' 'unauthorised Dual Residential Use' 'conciliation Agreement' 'modification of Orders']
['planning and Environment' 'development Control Orders' 'local Government'] ['stop Use Order' 'demolish Works Order' 'unauthorised Dual Residential Use' 'conciliation Agreement' 'modification of Orders']

Case Brief

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Procedural Posture

Class 1 Appeal Against Development Control Orders / Final Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could dispose of the proceedings in accordance with the parties' agreed decision under s 34(3) of the Land and Environment Court Act 1979." 'Whether the Court could modify the Stop Use Order and Demolish Works Order under s 8.18 of the Environmental Planning and Assessment Act 1979.' 'Whether the jurisdictional prerequisites for the amended stop use order were satisfied.']

Ratio Decidendi

Because the applicant had carried out sufficient works to return the premises to single residential use and the parties' agreed decision was one the Court could have made in the proper exercise of its functions, s 34(3) of the Land and Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with that decision by upholding the appeal, deleting the Demolish Works Order and amending the Stop Use Order under s 8.18 of the Environmental Planning and Assessment Act 1979.

Court Disposition

Appeal upheld; Demolish Works Order deleted; Stop Use Order amended; no order as to costs by agreement.

Orders

  • ['The appeal is upheld.' 'Pursuant to section 8.18 of the Environmental Planning and Assessment Act 1979, the Stop Use Order and the Demolish Works Order issued on 5 June 2020 is amended so that the Demolish Works Order is deleted, and the Stop Use Order is amended in accordance with the amended Order annexed hereto...