Smollen v Byron Shire Council [2023] NSWLEC 1043

Smollen v Byron Shire Council [2023] NSWLEC 1043

Because the parties reached agreement after a s 34 conciliation conference and the Court was satisfied that all jurisdictional prerequisites were met, that the proposed development was acceptable under s 4.15(1) of the Environmental Planning and Assessment Act 1979, and that the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting development consent subject to conditions.

Jurisdiction
Australia
Judgment Date
07 February 2023
Procedural Posture
Class 1 Appeal Against Refusal of Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'development Consent' 'conciliation Conference' 'coastal Environment Area' 'littoral Rainforest' 'biodiversity Conservation' 'basix' 'deferred Matter Under Local Environmental Plan']
['environmental Planning and Development Law' 'land and Environment Court Procedure'] ['development Application' 'development Consent' 'conciliation Conference' 'coastal Environment Area' 'littoral Rainforest' 'biodiversity Conservation' 'basix' 'deferred Matter Under Local Environmental Plan']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application / Orders Following S 34 Conciliation Conference and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision to uphold the appeal and grant development consent was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether jurisdictional prerequisites for granting consent to Development Application 10.2022.249.1 were satisfied under applicable environmental planning instruments and legislation.' 'Whether the proposed construction of a swimming pool and four decks in association with an approved dwelling house at 8 Border Street, Byron Bay was acceptable having regard to s 4.15(1) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Because the parties reached agreement after a s 34 conciliation conference and the Court was satisfied that all jurisdictional prerequisites were met, that the proposed development was acceptable under s 4.15(1) of the Environmental Planning and Assessment Act 1979, and that the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with the parties' decision by upholding the appeal and granting development consent subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application 10.2022.249.1 for construction of a swimming pool and four decks in association with an approved dwelling house on the land at 8 Border Street, Byron Bay subject to the conditions set out in Annexure A.']