Dach v Kiama Council - [2007] NSWLEC 316

Land and Environment Court

of New South Wales

CITATION: Dach v Kiama Council [2007] NSWLEC 316

PARTIES:
APPLICANT
Evelyn Dach
RESPONDENT
Kiama Council

FILE NUMBER(S): 10218 &10430 of 2006

CORAM: Moore C

KEY ISSUES: Building Certificate - Development Application :-
House with no development consent
Revegetation objective of zone
Minimal impact of structure permitted to remain
Removal of exotic vegetation

LEGISLATION CITED: Kiama Local Environmental Plan 1996
State Environmental Planning Policy No 1
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
.

CASES CITED: Ireland v Cessnock City Council [1999] 110 LGERA 311;
Jonah Pty Limited v Pittwater Council [2006] 144 LGERA 408;
Goldin v The Minister for Transport and the Minister Administering the Waterways Legislation [2002] 121 LGERA 101;
Winton Property Group Limited v North Sydney Council [2001] NSWLEC 46;
.

DATES OF HEARING: 26 April, 3 and 4 May 2007

DATE OF JUDGMENT:
4 May 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Doyle, barrister
INSTRUCTED BY
Thomson Playford
RESPONDENT
Mr P Moggach, solicitor
Kearns & Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

4 May 2007

06/10218 & 06/10430 Evelyn Dach v Kiama Council

JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions and the consequent granting of a building certificate after the development has been carried out. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 COMMISSIONER: These are two appeals concerning a single property on Jamberoo Mountain to the west of Kiama and Jamberoo. It is toward the western boundary of the Kiama Council Local Government area and is on the upper slopes of the Jamberoo Valley escarpment. The property’s address is 948 Jamberoo Road, Jamberoo (being Lot 176 DP751279) (the property).

2 A number of aerial photographs are in evidence which show that between 1948 and the end of the 1970s significant revegetation took place on the cleared area of the property.

3 Subsequent aerial photographs taken from 1988 onwards show varying degrees of clearing in the vicinity of the present dwelling site. A dwelling was erected on the property in the mid 1980s although there is a degree of uncertainty about the precise date of construction – however, nothing in particular turns on requiring precision in that regard.

4 The property has an area of 16.19 ha and has access from Jamberoo Mountain Road by way of a right of way over the adjacent property generally located to its east. That access way is generally at grade across the slope of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dach v Kiama Council

Details

AGLC: Dach v Kiama Council [2007] NSWLEC 316
Case: [2007] NSWLEC 316
Decision Date: 4 May 2007

CaseChat Overview and Summary

This appeal concerns a single property located on Jamberoo Mountain, west of Kiama and Jamberoo. The applicant, Evelyn Dach, is the sole owner of the property and has appealed against the Council’s refusal to grant her a building certificate for two structures on the property and a refusal to grant development consent for the continued use of those structures. The two structures in question are a dwelling and associated pergola and barbecue area and a garage structure. The appeal was heard over a number of days in April and May 2007, and the Commissioner handed down his decision on 4 May 2007. The Commissioner held that it would be appropriate to grant development consent subject to detailed conditions and the consequent granting of a building certificate after the development had been carried out. The conditions were not reproduced as part of the decision but were available for inspection at the Council. In addition, a copy of the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. The Commissioner held that it would be appropriate to grant a consent for the use of the dwelling but not for the garage structure. The Commissioner also held that the requirements of a vegetation management plan as envisaged by the joint report of the flora and fauna experts and as canvassed in the Council’s without prejudice conditions of consent should be subject to a number of specific requirements in addition to those set out in the Council’s conditions of consent. The Commissioner held that the development consent should be granted for a limited period of 15 months from the date of the orders to give effect to his decision. This would provide time for the applicant to lodge a further application to the Council, either pursuant to s 97 or s 96 of the Environmental Planning and Assessment Act 1979, to enable the Council to assess whether the necessary prerequisite benefits had in fact been achieved. Such assessment would therefore provide a satisfactory basis for an ongoing or enduring consent or whether, if they were breached, the reasons that he had advanced for sustaining the present objection would fail to exist for some future objection for an ongoing and enduring consent. The Commissioner also held that it would not be appropriate to grant a consent to use the garage structure. The Commissioner held that neither party had obtained the totality of that which they had sought in these proceedings and it would be unlikely that any costs order would flow from the outcome of these proceedings if any party sought to agitate this issue.

Orders