Constable v Byron Shire Council [2021] NSWLEC 1655

Constable v Byron Shire Council [2021] NSWLEC 1655

The Court was satisfied that the parties' agreed modification of the development control order was a decision the Court could make in the proper exercise of its functions, because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify the order and s 8.18(4)(f) empowered it to make such other orders with respect to the development control order as it thought fit. Section 34(3)(a) of the Land and Environment Court Act 1979 therefore required the proceedings to be disposed of in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
27 October 2021
Procedural Posture
Class 1 Appeal Against a Development Control Order / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development control order varied; parties granted liberty to apply to extend the timeframe for compliance.
Legal Topics
['appeal Against Development Control Order' 'demolish Works Order' 'building Erected Without Development Consent' 'conciliation Conference' 'modification of Order']
['planning and Environment Law' 'development Control Orders'] ['appeal Against Development Control Order' 'demolish Works Order' 'building Erected Without Development Consent' 'conciliation Conference' 'modification of Order']

Case Brief

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Procedural Posture

Class 1 Appeal Against a Development Control Order / Orders Made Following a Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the development control order requiring demolition of the shed/studio building should be modified following the parties' agreement." 'Whether the Court had power under s 8.18(4) of the Environmental Planning and Assessment Act 1979 to modify the development control order.' 'Whether the agreed decision was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The Court was satisfied that the parties' agreed modification of the development control order was a decision the Court could make in the proper exercise of its functions, because s 8.18(4)(b) of the Environmental Planning and Assessment Act 1979 empowered the Court to modify the order and s 8.18(4)(f) empowered it to make such other orders with respect to the development control order as it thought fit. Section 34(3)(a) of the Land and Environment Court Act 1979 therefore required the proceedings to be disposed of in accordance with the agreement.

Court Disposition

Appeal upheld; development control order varied; parties granted liberty to apply to extend the timeframe for compliance.

Orders

  • ['The Appeal is upheld.' 'The Development Control Order issued to the Applicant on 5 May 2021 by Byron Shire Council in relation to Lot 2 in DP 258036, known as 198 Main Arm Road, Mullumbimby, NSW, is varied.' 'The Order is amended so that the time for compliance is by 6 June 2022.' 'Order 1 is amended to add after...