Elwaw v Kiama Municipal Council

[2022] NSWLEC 1395

Land and Environment Court

New South Wales

Medium Neutral Citation:

Elwaw v Kiama Municipal Council [2022] NSWLEC 1395

Hearing dates:

Conciliation conference on 6 and 21 June 2022, 1, 5 and 6 July 2022

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The clause 4.6 request seeking to vary the minimum lot size for erection of a dwelling house development standard (cl 4.2A of Kiama Local Environmental Plan 2011) prepared by Chapman Planning Pty Ltd dated 3 July 2022 is upheld.

(3) Development Application DA 10.2020.190.1 for the construction of a dwelling house and secondary dwelling, pools (x2), driveway and associated landscaping at 16 Crooked River Road, Gerroa is determined by the grant of consent subject to the conditions set out in Annexure “A”.

Catchwords:

DEVELOPMENT APPEAL – residential – cl 4.6 written request to justify contravention of development standard of minimum lot size - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000

Environmental Planning and Assessment Regulation 2021

Kiama Local Environmental Plan 2011, cll 4.2A, 4.6

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Affordable Rental Housing) 2009 cl 30AA

State Environmental Planning Policy (Resilience and Hazards) 2021

Cases Cited:

Canterbury Bankstown Council v Dib [2022] NSWLEC 79

Category:

Principal judgment

Parties:

Anthony Elwaw (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
H Irish (Respondent)

Solicitors:
Pikes Lawyers (Applicant)
McCullough Robertson (Respondent)

File Number(s):

2022/67073

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 refusal of Development Application No. 10.2020.190.1 seeking development consent for staged development (the Proposed Development) as follows:

1. a primary and secondary dwelling house, each with its own swimming pool and wood fire heater;

2. a storage shed; and

3. construction of a shared access driveway,

4. on land located at Lot 201 DP 1022563, known as 16 Crooked River Road, Gerroa (Site).

2. During stage 1 of the Proposed Development the construction of the proposed secondary dwelling, swimming pool, wood heater, prefabricated shed and driveway is proposed. Stage 2 will comprise the construction of the primary dwelling, its pool and wood heater.

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 6 and 21 June 2022, 1, 5 and 6 July 2022. I 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 development consent to the development application subject to conditions.

5. The Respondent Council’s submitted written reasons for its preparedness to reach agreement with the Applicant pursuant to s 34(3) of the LEC Act which include the following:

“namely, that the development application has been amended:

i.   to amend the architectural and urban design of the proposal so that it achieves the objectives of the C3 Environmental Management Zone under the KLEP 2011 and is responsive to the outstanding attributes of the site and surrounding landscape;

ii.   to provide for the following amendments:

(i)   movement of the principal dwelling further down the slope of the site to the east and changing its form to be one of a series of pavilions, each having a separate roof form to resemble a more rural than suburban form;

(ii)   movement of the secondary dwelling further down the slope to of the site to the east and amending its form to have a more square-shaped building footprint;

(iii)   amending the design of the principal and secondary dwellings so that they read as more integrated, complementary forms;

(iv)   amending the colours and finishes so that they are more visually recessive; and

(v)   amending the landscaping plan to provide for a soft landscaping design that avoids formal and/or high hedges and rows of plants and to expressly allow for the retention of cross-site views to the headland and ocean in locations when viewed from the public domain, without compromising resident privacy; and

iii.   to provide for the surrender of Development Consent No. DA 10.2016.343.1 (new dwelling) and Development Consent No. DA20.2005.149.1 (tourist accommodation) as a condition of consent.”

6. 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.

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 cl 4.6 of the Kiama Local Environmental Plan 2011 (KLEP) to vary a development standard.

8. The parties explained how the jurisdictional prerequisites have been satisfied in a jurisdictional note which I summarise in this judgment below.

9. The Proposed Development is accompanied by written consent of the owner of the Site in accordance with the requirements of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

10. The Proposed Development is for the purposes of a dwelling house and secondary dwelling as defined in the Dictionary to the KLEP. The Site is situated within the Zone C3 Environmental Management pursuant to the provisions of the KLEP.

11. Consideration has been given to whether the Site is contaminated as required by s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021. Given the historical use of the site for residential purposes, there is no reason to believe that the land is contaminated.

12. A BASIX Certificate number 1318237M dated 28 June 2022 has been provided and filed on 6 July 2022 to satisfy the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 (formerly Sch 1 of the EPA Regulation).

Is the contravention of the development standard for Minimum Lot Size for Erection of a Dwelling House justified by a written request pursuant to cl 4.6 of the KLEP?

13. The Site has an area of 1.195 Hectares. Pursuant to cl 4.2A(3)(a) of the KLEP, development consent must not be granted for the erection of a dwelling house unless the area of the land is at least 40 Hectares.

14. The wording of cl 4.2A(3) of the KLEP uses the language “Development consent must not be granted…”. Whereas for example, cl 4.1(3) states “The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown…”. The parties acknowledge that the language used in cl 4.2A(3) is more prohibitory in nature than cl 4.1(3).

15. The parties refer to the recent decision of Preston CJ in Canterbury Bankstown Council v Dib [2022] NSWLEC 79. In that case, Preston CJ determined that cl 30AA of the now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was a development standard. Cl 30AA was in the following terms,

A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.

16. The parties note that cl 30AA was in similar prohibitory terms to cl 4.2A(3) of the KLEP. At [67], Preston CJ stated:

“Development standards can be drafted in different ways. A provision may be drafted with language that appears regulatory or prohibitory, but the substance, however drafted, may be the same. As Giles JA observed in Strathfield Municipal Council v Poynting at [93]: “Care must be taken lest form govern rather than substance.”

17. Adopting His Honour’s reasoning, the prohibitory language used does prevent cl 4.2A(3) of the KLEP from being a development standard. The parties are of the view that cl 4.2A(3) of the KLEP is a development standard which falls within the definition contained in s 1.4(1)(a) of the EPA Act and the parties note that cl 4.2A falls within “Part 4 Principal Development Standards” in the KLEP.

18. The parties also note that cl 4.2A is not identified in cl 4.6(8) of the KLEP.

19. I conclude that cl 4.2A of the KLEP is a development standard, and adopt the reasons given by the parties.

20. Clause 4.6 of the KLEP provides for exceptions to development standards, including cl 4.2A. An amended cl 4.6 written request, prepared by Chapman Planning Pty Ltd and dated 3 July 2022 and filed 6 July 2022, is relied on by the Applicant.

21. I have read the cl 4.6 written request which is submitted to address the contravention of the 40 Hectare minimum lot size development standard specified within cl 4.2A(3)(a) of the KLEP. A history of the Site is included which I reproduce below:

“Beachlands House was constructed in the 1890s on a lot having an area of 28.7ha.

In 1929, the land was the subject of a boundary adjustment with the adjoining lot which increased its size to 37.85ha.

The minimum lot size under the provisions of Kiama LEP No.5 (which came into force on 21 August 1981 was 40ha. It is noted that the dwelling house was in existence at this time and so was deemed to have a development consent. It was also already on an undersized lot at this time.

In 1986 subdivision was undertaken, by the then owners of the land Kiama Municipal Council, to create the land for the adjoining Gerringong Golf Course (lot 4) having an area of 32.7ha with the residue Lot 1 being a 2Ha parcel of land that contained Beachlands house and another two residue lots having a combined area of 2.8ha. The subdivision was permitted under the provisions of Kiama LEP No. 5 that allowed subdivision less than the minimum of 40ha for any purpose other than agriculture, forestry or a dwelling house.

In 2001, a boundary adjustment was carried out between Lots 1 and 4 DP730771 to increase the size of the Gerringong Golf Club and subsequently reduce the size of the land in which Beachlands house was located. The subdivision created 2 parcels being: - Lot 201 being 1.95Ha containing Beachlands dwelling house, and - Lot 202 being a 33.5Ha parcel of the land for the Gerringong Golf Club.

The Beachlands dwelling was destroyed by fire in 2002.

Kiama LEP 1996 – Amended 42 Schedule 4 Development for certain additional purposes: - Lot 201, DP1022563 Crooked River Road, Gerroa, as shown edged heavy black on the map marked “Kiama Local Environmental Plan 1996 (Amendment No 42)”—low impact and low scale tourist facility comprising buildings no higher than two storeys.

Development consent No. 10.2016.343.21 was issued on 8 June 2017 for a dwelling house. This consent is active until June 2024.”

22. I find that the Applicant is not able to rely on this history for the purposes of the exception provided at cl 4.2A(5)(a) of the KLEP. The history provides some assistance to the extent that the objectives of the development standard and the objectives of the zone are achieved as set out in the cl 4.6 written request.

23. The Council considers, and the Court is satisfied, that the cl 4.6 written request relating to the development application as amended seeking to justify the contravention of the development standard is well founded and that:

1. the Applicant’s written request has adequately addressed the following matters required to be demonstrated by clause 4.6(3):

2. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the standard are achieved notwithstanding the non-compliance (at pages 4-5 of the cl. 4.6 written request), and

3. that there are sufficient environmental planning grounds to justify the contravention of the development standard (at page 5-6 of the cl. 4.6 written request); and

4. the proposed development will be in the public interest because it is consistent with the objectives of cl 4.2A of the KLEP and the objectives for development in the C3 zone (at page 7-8 of the cl. 4.6 written request).

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.

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 has agreed under, clause 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application in accordance with the below documentation:

Document	Dwg	Revision	Dated
Clause 4.6 Variation Request prepared by Chapman Planning Pty Ltd	-	-	3.07.22
Architectural Plans prepared by FutureFlip Pty Ltd:
Title Page	DA-A000	E	05.07.22
BASIX Notes	DA-A010	E	05.07.22
Site Plan	DA-A100	E	05.07.22
Dwelling 1 Floor Plan	DA-A200	E	05.07.22
Dwelling 1 Roof Plan	DA-A210	E	05.07.22
Dwelling 2 Ground Floor Plan	DA-A220	E	05.07.22
Dwelling 2 First Floor Plan	DA-A230	E	05.07.22
Dwelling 2 Roof Plan	DA-A240	E	05.07.22
Elevation 1 – Dwelling 1 – NW	DA-A300	E	05.07.22
Elevation 2 – Dwelling 1 – NE	DA-A310	E	05.07.22
Elevation 3 – Dwelling 1 – SE	DA-A320	E	05.07.22
Elevation 4 – Dwelling 1 – SW	DA-A330	E	05.07.22
Section 1 – Dwelling 1	DA-A340	E	05.07.22
Section 2 – Dwelling 1	DA-A350	E	05.07.22
Elevation 1 – Dwelling 2- NW	DA-A360	E	05.07.22
Elevation 2 – Dwelling 2 – NE	DA-A370	E	05.07.22
Elevation 3 – Dwelling 2 - SE	DA-A380	E	05.07.22
Elevation 4 – Dwelling 2 –SW	DA-A390	E	05.07.22
Section 1 – Dwelling 2	DA-A400	E	05.07.22
Section 2 – Dwelling 2	DA-A410	E	05.07.22
External Finishes Schedule – Dwelling 1	DA-A500	E	05.07.22
External Finishes Schedule – Dwelling 2	DA-A510	E	05.07.22
3D Perspective 1	DA-A520	E	05.07.22
3D Perspective 2	DA-A530	E	05.07.22
3D Perspective 3	DA-A540	E	05.07.22
3D Perspective 4	DA-A550	E	05.07.22
3D Perspective 5	DA-A560	E	05.07.22
3D Perspective 6	DA-A570	E	05.07.22
3D Perspective 7	DA-A580	E	05.07.22
3D Perspective 8	DA-A590	E	05.07.22
Window and Door Schedule – Dwelling 1	DA-A600	E	05.07.22
Window and Door Schedule – Dwelling 2	DA-A610	E	05.07.22
Landscape plans prepared by Landscape Architect ‘R+M Landscape Architecture’:
Landscape Title sheet	LP01	D	01.07.22
Landscape Master Plan	LP02	D	01.07.22
Detail House Plan	LP03	D	01.07.22
Detail Housing Planting	LP04	D	01.07.22
Landscape Details	LP05	D	01.07.22

2. The Applicant lodged the amended application on the NSW Planning Portal on 6 July 2022.

3. The Applicant filed the amended application with the Court on 6 July 2022.

Orders

27. The Court orders that:

1. The appeal is upheld.

2. The clause 4.6 request seeking to vary the minimum lot size for erection of a dwelling house development standard (cl 4.2A of Kiama Local Environmental Plan 2011) prepared by Chapman Planning Pty Ltd dated 3 July 2022 is upheld.

3. Development Application DA 10.2020.190.1 for the construction of a dwelling house and secondary dwelling, pools (x2), driveway and associated landscaping at 16 Crooked River Road, Gerroa is determined by the grant of consent subject to the conditions set out in Annexure “A”.

E Espinosa

Commissioner of the Court

Annexure A (281897, pdf)

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Decision last updated: 25 July 2022