Corporate Client Services Pty Ltd v Kiama Municipal Council

[2025] NSWLEC 1450

Land and Environment Court

New South Wales

Medium Neutral Citation:

Corporate Client Services Pty Ltd v Kiama Municipal Council [2025] NSWLEC 1450

Hearing dates:

Conciliation conference held on 15 April, 6 May, 12 June 2025

Date of orders:

23 June 2025

Decision date:

23 June 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA 10.2023.101.1 for the construction of a farm building and access road at 162 Princes Highway Kiama legally described as Lot 1 in DP 1241447 subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – farm building and access road - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15, 15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

Kiama Local Environmental Plan 2011, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.4, 6.5

State Environmental Planning Policy ((Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy ((Transport and Infrastructure) 2021, s 2.119

Texts Cited:

Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

Corporate Client Services Pty Ltd ((Applicant)
Kiama Municipal Council ((Respondent)

Representation:

Counsel:
K Glanville ((Solicitor) ((Applicant)
D Gunter ((Solicitor) ((Respondent)

Solicitors:
Pikes and Verekers Lawyers ((Applicant)
Sparke Helmore Lawyers ((Respondent)

File Number(s):

2024/389326

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application DA 10.2023.101.1 seeking consent for the construction of a farm building and access road (Proposed Development) at 162 Princes Highway Kiama legally described as Lot 1 in DP 1241447 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 15 April, 6 May, 12 June 2025. I have presided over the conciliation conference.

3. The parties agree that all Contentions raised in the Statement of Facts and Contentions filed on 6 December 2024 have been resolved by the preparation of the:

1. agreed conditions of consent (Annexure A to the s 34 Agreement);

2. amended plans and materials referenced in par B to the Section 34 Agreement.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of the Kiama Local Environmental Plan 2011 (KLEP) and s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 regarding development on a property with frontage to a classified road. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note provided to the court.

8. Under the KLEP, the Site is situated predominantly within Zone RU2 Rural Landscape, with small parcels of the land classified as Zone C2 Environmental Conservation and Zone C3 Environmental Management. “Farm Buildings” are permissible with consent in the RU2 zone.

9. The proposed development is for a “farm building” which is permitted with consent under the RU2 Rural Landscape Zone in the KLEP. “Farm building” is defined in the KLEP as

“a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding of the like, but does not include a dwelling.”

10. As “Extensive Agriculture” is permitted without consent on land within the RU2 Rural Landscape Zone, consent is not sought (nor required) for the Applicant’s proposed future agricultural use of the Site.

11. The proposed farm building is a shed. The amended plans include an indicative layout for how material supporting an agricultural operation at the land would be stored within the shed. The amended development application is supported by an agronomist report which provides an opinion on how the shed would support and be required for the proposed future agricultural use of cattle grazing. Further, condition 43 limits future use of the shed to being ancillary to agricultural use. As such, the Court is satisfied that the shed is a structure which is ancillary to an agricultural use of the landholding.

12. Consent is sought for earthworks in accordance with cl 6.2 of the KLEP.

13. There is no mapped maximum floor space ratio or maximum building height for the Site pursuant to the KLEP and as such, cll 4.3 and 4.4 of the KLEP do not arise.

14. The Site is not mapped as being subject to:

1. heritage conservation: cl 5.10, KLEP;

2. flood planning controls: cl 5.21, KLEP;

3. acid sulfate soils: cl 6.1, KLEP.

15. The Court is satisfied that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact as required by cl 6.4(4) of the KLEP because, while the Site contains areas of mapped terrestrial biodiversity, that run coincident with the C2 zoning, the Proposed Development will have no impact on these identified areas of terrestrial biodiversity, as the shed has been located on part of the Site which is zoned RU2 and is vacant grazing land.

16. The Court is satisfied that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact on riparian land and watercourses pursuant to cl 6.5(4) of the KLEP because:

1. The proposed farm building and ancillary onsite effluent disposal and access are sited on previously cleared pastureland. The proposed shed is sited to avoid areas of environmental sensitivity. The proposed development is not sited within 40m of any mapped watercourse and will have no impact on these identified areas of riparian land.

2. A Soil and Site Assessment for the Onsite Waste Water disposal has also been provided in the Amended Development Application and concludes that appropriate waste water management can be implemented to dispose of wastewater and effluent.

17. The Proposed Development is a non-residential building being a Class 10a building and the location is proposed to be more than 6m away from any dwelling on the Site and other neighbouring properties. Accordingly, while part of the Site is mapped as bush fire prone land, as per section 8.3.2 of Planning for Bush Fire Protection 2019, there are no bush fire protection requirements for Class 10a buildings when located more than 6m from a dwelling.

18. In consideration as to the contamination status of the Site pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021, the parties agree that there is no basis to suspect that the land is contaminated. I have also referred to the Agricultural land use and shed assessment dated 29 May 2025 prepared by agricultural consultants Rural Management Strategies Pty Ltd, and note their summary as follows:

“The property consists of approximately 10 hectares of highly productive, improved pasture, predominantly composed of kikuyu, ryegrass, and clover species. Until recently, the property has been operated as part of a dairy farming operation since the 1850’s, which has comprised grazing dairy cattle and the production of hay and silage. The current owner has had agistment cattle during his tenure.”

19. The Proposed Development has located the proposed access road to be accessible via an existing driveway located from the Princes Highway which is a classified road. As such, there is no change to the existing road crossings on the Princes Highway. The Site does not have a frontage to any alternative roads. Condition 5 also requires the preparation of a detailed construction traffic management plan prior to the issue of a construction certificate which will detail how construction traffic and parking will be addressed. The Court can be satisfied that the proposed development has acceptable road access arrangements and satisfies the terms of s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021.

20. The development application was notified between 13 February and 5 March 2024. One submission was received. This submission objected to the Proposed Development on the grounds of its proximity to an historical grass airstrip on the adjoining land to the south of the Site and the visual impact of the proposed shed on the rural landscape.

21. The Parties and their experts have considered the above submission and agree that approval of the Amended Development Application is appropriate in the circumstances. In particular, the location of the shed has been moved and landscaping introduced, in order to minimise visual impacts. The proposed farm building is located at an RL which will reduce its visual prominence, and avoid impeding use of the adjoining airstrip.

22. An additional submission dated 22 April 2025 was received by the Respondent on 28 April 2025 following the conciliation conference and a copy has also been provided to the Court. The person who made the submission had not previously made a submission during the public exhibition of the DA. It is therefore not a submission that has been duly made in accordance with the EPA Act, however, the Respondent has considered it pursuant to subs 15(3) and (4) of Sch 1 to the EPA Act. In response to the submission, the parties agree that:

1. The Applicant has demonstrated, and the Council accepts, that the Proposed Development is properly characterised as a farm building under the KLEP and has justified the need for the farm shed having regard to the proposed agricultural use of the Land.

2. The farm shed has been appropriately located, and landscaping introduced, to minimise the visual impact of the development. Condition 34 requires the landscaping works to be completed prior to the issue of an occupation certificate, and condition 44 imposes a 12 month maintenance period for that same landscaping.

3. Condition 5 requires the preparation of a construction traffic management plan which proposes the methods of dealing with construction traffic and parking. One of the requirements of the construction traffic management plan is including measures to protect existing vegetation along the haulage route.

4. The Applicant has provided detailed engineering plans of the proposed driveway. Condition 13 also requires construction level drawings to be prepared prior to the issue of a construction certificate.

23. The Council has determined that its Community Participation Plan does not require re-notification of the amended development application.

24. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties as set out in this judgment.

25. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notations:

26. The Court notes that:

1. Kiama Municipal Council as the relevant consent authority for the purposes of s 38 of the Environmental Planning and Assessment Regulation 2021 approves the Applicant amending development application no. DA 10.2023.101.1 in accordance with the following plans and documentation (Amended Application):

Approved Plans
Plan number	Revision number	Plan title	Drawn by	Date of plan
K128931-02	Rev G	Site Plan	Allen Price Development Consultants	31/03/2025
23.007.02D	Rev D	Plan + Elevation	Tadhg O Foghlu	15/05/2025
23.007.03D	Rev D	Side Elevation and Cross Section	Tadhg O Foghlu	15/05/2025
23.007.04D	Rev D	Rear Elevation (North)	Tadhg O Foghlu	15/05/2025
LD250404 LD01	Rev 02	Site Plan	MGLD	16/04/2023
LD250404 LD02	Rev 02	Landscape Plan	MGLD	16/04/2023
01 OF 03	B	Cover Sheet	30/04/2025
02 OF 03	B	Earthworks Plan	30/04/2025
03 OF 03	C	Cut and Fill Plan	04/06/2025
04 OF 04	B	Erosion and Sediment Control Plan	04/06/2025
01 OF 08	3	Cover Sheet	04/06/2025
02 OF 08	3	Access Track Plan	04/06/2025
03 OF 08	3	Setout Table and Typical Section	04/06/2025
04 0F 08	3	Access Track LongSection	04/06/2025
05 OF 08	3	Cross Sections Sheet 1 of 3	04/06/2025
06 OF 08	3	Cross Sections Sheet 2 of 3	04/06/2025
07 OF 08	3	Cross Sections Sheet 3 of 3	04/06/2025
08 OF 08	1	Erosion and Sediment Control Plan	04/06/2025
Approved Documents
Document title	Version number	Prepared by	Date of document
Solid and Site Assessment for Onsite Wastewater Disposal	1.2	Harris Environmental Consulting	24/04/2025
Agricultural Land Use and Shed Assessment	N/A	Rural Management Strategies Pty Limited, Agricultural Consultants	29/05/2025

2. The Applicant has subsequently filed the Amended Application with the Court on 13 June 2025.

Orders:

27. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA 10.2023.101.1 for the construction of a farm building and access road at 162 Princes Highway Kiama legally described as Lot 1 in DP 1241447 subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

Annexure A (224 KB, pdf)

**********

Decision last updated: 23 June 2025