Cole v Kiama Municipal Council

[2024] NSWLEC 1415

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cole v Kiama Municipal Council [2024] NSWLEC 1415

Hearing dates:

Conciliation conference on 15 and 16 July 2024

Date of orders:

23 July 2024

Decision date:

23 July 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application 10.2022.152.1, for the demolition of existing dwelling and construction of a dual occupancy, is approved, subject to conditions of consent set out in Annexure A.

Catchwords:

APPEAL – development application – dual occupancy – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38

Kiama Local Environmental Plan 2011, cl 4.1E, 6.2, 6.12

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

Cases Cited:

SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66

Category:

Principal judgment

Parties:

Kirsten Cole (First Applicant)
Kieran Hennessy (Second Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicants)
D Gunter (Solicitor) (Respondent)

Solicitors:
Foundation Law (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/2645

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The coastal town of Gerroa sits on the northern head of Seven Mile Beach, with dwellings on Riverleigh Avenue having views towards the beach and Seven Mile Beach National Park. This appeal concerns a development application for the demolition of the existing dwelling and the construction of a dual occupancy at 50 Riverleigh Avenue, Gerroa. The development application was refused by Kiama Municipal Council on 18 July 2023. The applicants appeal against that determination pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 15 July 2024. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was provided on 16 July 2024, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made include an increase in the rear setback of the northern dwelling, so as to achieve alignment of the rear setback with the predominant rear setback and to increase the views retained from the adjoining dwelling over the site’s northern side boundary to Coolangatta Mountain. The amendments also include a reorientation of the built form, an alternative stormwater design which permits roof drainage to the street, a reduction in size and redesign of the rear balconies, reduction in depth of living room areas, relocation of the built form closer to the street, and amended materials and palette for the front façade.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by agreed submissions on Jurisdictional Matters. I have considered the contents of the agreed submissions, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purpose of a dual occupancy, which is a permissible use in the R2 Low Density Residential zone in which the site is located, pursuant to the Kiama Local Environmental Plan 2011 (KLEP). The proposed development complies with the development standards for height, floor space ratio and the carrying out of dual occupancy development in cl 4.1E(4) of the KLEP.

• The development application includes minor earthworks, with up to 1m of excavation. Based on the joint report of the town planners filed on 5 July 2024, the stormwater concept plan, and the small extent of excavation, I have considered the matters set out in cl 6.2(3) of the KLEP.

• The site is already serviced by water, electricity, sewage disposal and suitable road access, and, consistent with the stormwater concept plan, stormwater drainage will be available when required. As such, I am satisfied that the services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required, consistent with cl 6.12 of the KLEP.

• Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by the BASIX certificate dated 26 July 2022. Whilst the revised plans necessitate the preparation of an updated BASIX certificate, the parties agree that this can be resolved through the imposition of a deferred commencement condition (see SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [82]).

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The site is within the coastal environment area and the coastal use area, pursuant to the SEPP RH. Based on the location of the site and the nature of the development, including its distance from the foreshore, I have considered the matters in ss 2.10(1) and 2.11(1)(a), and, consistent with ss 2.10(2)(a) and 2.11(1)(b) I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP RH.

• The development application was publicly notified between 12 October and 25 October 2022. Nine written submissions were received in response. In addition, a number of residents attended the site inspection and either made oral submissions or had a town planner speak on their behalf. I have considered the issues raised in those written and oral submissions.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Kiama Municipal Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 10.2022.152.1 to rely upon the plans and documents in Condition 1 of Annexure A.

2. The Applicant filed the amended development application with the Court on 16 July 2024.

9. The Court orders that:

1. The appeal is upheld.

2. Development application 10.2022.152.1, for the demolition of existing dwelling and construction of a dual occupancy, is approved, subject to conditions of consent set out in Annexure A.

J Gray

Commissioner of the Court

2645.24 (Annexure A)

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Decision last updated: 23 July 2024