Dartanyon Developments Pty Ltd v Kiama Municipal Council

[2020] NSWLEC 1125

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dartanyon Developments Pty Ltd v Kiama Municipal Council [2020] NSWLEC 1125
Hearing dates:	Conciliation conference on 11 and 27 February, 4 and 6 March 2020
Date of orders:	31 March 2020
Decision date:	31 March 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans and documents listed in condition General (1) to the conditions of consent and the written request under clause 4.6 of the Kiama Local Environmental Plan 2011 entitled ”Written Request under Clause 4.6 Exceptions to Development Standards of Kiama Local Environmental Plan 2011” and dated 5 March 2020. (2) The Applicant is to pay the Respondent's costs thrown away for reviewing the amended plans received on 18 February 2020 and for reviewing the cl 4.6 variation requests dated February and March 2020 and for attendance at the hearing on 10 and 11 February 2020 (including travel on 9 February 2020), under s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The Applicant's written request under clause 4.6 of the Kiama Local Environmental Plan 2011 dated 5 March 2020 for contravention of the height standards imposed by clauses 4.3 of the Kiama Local Environmental Plan 2011 is upheld. (4) The appeal is upheld. (5) Development application no. DA 10.2017.291.1 seeking development consent for demolition of existing motel and construction of a three storey shop top housing development with basement car parking, three commercial tenancies, five serviced apartments and twelve residential apartments and stratum/strata subdivision comprising three stratums at Lot 1 DP615423, 10 Bong Bong Street, Kiama is approved subject to the conditions contained at Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Kiama Local Environment Plan 2011 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Dartanyon Developments Pty Ltd (First Applicant) The Rogan Property Group Pty Ltd (Second Applicant) Kiama Municipal Council (Respondent)
Representation:	Counsel: T Robertson SC (Applicant) H Irish (Respondent)   Solicitors: HWL Ebsworth Lawyers (Applicant) McCullough Robertson (Respondent)
File Number(s):	2019/82040
Publication restriction:	No

Judgment

1. COMMISSIONER: Dartanyon Developments Pty Ltd and The Rogan Property Group Pty Ltd (the Applicants) have appealed the refusal by Kiama Municipal Council (the Respondent) of their development application (DA 10.2017.291.1) which sought consent for the demolition of an existing motel, and construction of a three storey shop top housing development, with basement car parking (the Proposed Development), 10 Bong Bong Road, Kiama (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. 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 11 February 2020, and subsequently on 27 February 2020, 4 and 6 March 2020, and I have presided over the conciliation conference.

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

6. The parties have explained how the Applicant’s amended plans have satisfied relevant jurisdictional matters, including in relation to the zoning of the land, land contamination under State Environmental Planning Policy No 55—Remediation of Land, and development standards pertaining to the maximum permitted floor space ratio and the height of buildings on the Subject Site, and the compliance or otherwise of the Applicant’s proposed development, as amended, with those standards.

7. The parties have further explained how their contentions in this matter have been resolved by the Applicant’s amended plans, and through the preparation of a written request under cl 4.6 of Kiama Local Environment Plan 2011 (KLEP) in relation to an exceedance of the height of buildings development standard in cl 4.3 in KLEP.

8. The Parties submitted, and I agree, that the written request to vary the height of development standard in KLEP is well founded because:

1. compliance with the standard is unreasonable or unnecessary because the Proposed Development would achieve the objectives of the standard, notwithstanding the exceedance;

2. there are sufficient environmental planning grounds to justify the exceedance of the standard;

3. the proposed Development is in the public interest because it is consistent with:

1. the objectives for development within the B1 zone in which the Proposed Development is to be carried out; and

2. the objectives of the height of buildings standard in cl 4.3 of KLEP.

9. I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EP&A Act can be exercised by the Court.

10. I am also 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.

11. 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.

12. The Court orders:

1. The Applicant is granted leave to rely on the amended plans and documents listed in condition General (1) to the conditions of consent and the written request under clause 4.6 of the Kiama Local Environmental Plan 2011 entitled ”Written Request under Clause 4.6 Exceptions to Development Standards of Kiama Local Environmental Plan 2011” and dated 5 March 2020.

2. The Applicant is to pay the Respondent's costs thrown away for reviewing the amended plans received on 18 February 2020 and for reviewing the cl 4.6 variation requests dated February and March 2020 and for attendance at the hearing on 10 and 11 February 2020 (including travel on 9 February 2020), under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The Applicant's written request under clause 4.6 of the Kiama Local Environmental Plan 2011 dated 5 March 2020 for contravention of the height standards imposed by clauses 4.3 of the Kiama Local Environmental Plan 2011 is upheld.

4. The appeal is upheld.

5. Development application no. DA 10.2017.291.1 seeking development consent for demolition of existing motel and construction of a three storey shop top housing development with basement car parking, three commercial tenancies, five serviced apartments and twelve residential apartments and stratum/strata subdivision comprising three stratums at Lot 1 DP615423, 10 Bong Bong Street, Kiama is approved subject to the conditions contained at Annexure ‘A’.

………………………

M Chilcott

Commissioner of the Court

Annexure A (206 KB)

**********

Decision last updated: 31 March 2020