Enzo Developments Pty Ltd v Kiama Municipal Council

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Enzo Developments Pty Ltd v Kiama Municipal Council [2025] NSWLEC 1092
Hearing dates: 26 & 27 November 2024
Date of orders: 20 February 2025
Decision date: 20 February 2025
Jurisdiction:Class 1
Before: Washington C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 10.2023.109.1 for the continuing use of an existing orchard, and construction of a netting structure around and over the existing orchard, at 92 Jerrara Road, Jerrara, legally described as Lot 202 DP 1095943, is determined by the grant of consent subject to the conditions at Annexure A.

(3) Exhibits C, E, 2, 4, 5 and 8 are returned. All other exhibits are retained.

Catchwords:

DEVELOPMENT APPLICATION – continued use of an existing orchard and construction of orchard netting – view sharing principles – impacts on adjacent heritage item

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.15

Kiama Local Environmental Plan 2011, cll 6.2, 6.5

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

Cases Cited:

Tenacity Consulting v Warringah [2004] NSWLEC 140

Texts Cited:

Kiama Development Control Plan 2020

Category:Principal judgment
Parties: Enzo Developments Pty Ltd (Applicant)
Kiama Municipal Council (Respondent)
Representation:

Counsel:
N Eastman SC (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2024/106583
Publication restriction: No

JUDGMENT

  1. Enzo Developments Pty Ltd (Enzo) have planted an orchard on their farm at 92 Jerrara Road, Jerrara, Lot 202 DP 1095943. The orchard contains approximately 250-300 plants consisting of trees, shrubs and vines, and it is the use of this orchard, and the construction of a netting structure around and over it, for which Enzo seeks consent in development application 10.2023.109.1.

  2. The site is zoned RU2 Rural Landscape pursuant to the Kiama Local Environmental Plan 2011 (KLEP), with a small area in the north-western corner, outside the development footprint, zoned as C2 Environmental Conservation. The orchard is planted directly to the west and north west of the heritage listed property ‘Park Mount’ at 82 Jerrara Road, and broadly speaking, it is the impacts on this neighbouring property that form the basis of Kiama Municipal Council’s key contentions in this appeal.

  3. This appeal was brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) as a result of the Council’s deemed refusal of the development application.

  4. For the following reasons, I find that the impact of the development on the heritage significance of Park Mount, views from the dwelling at Park Mount, and on the rural landscape character, is acceptable, and that the appeal should be upheld.

The proposed development

  1. The application is for the use of an existing orchard, and the construction of a netting structure to surround it. The orchard is 1.9 hectares in size, and the corresponding netting structure will be maximum 140m long x 140m wide x 4.5m high, supported by galvanised poles set out on a…

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Details
Case
[2025] NSWLEC 1092
Decision Date

CaseChat Overview and Summary

Enzo Developments Pty Ltd appealed against the decision of the Kiama Municipal Council to refuse consent for the continued use of an existing orchard and the construction of a netting structure over the orchard at 92 Jerrara Road, Jerrara. The dispute was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the council's refusal of consent for the orchard's continued use and the construction of a netting structure was lawful. Enzo Developments contended that the refusal was unreasonable and not in accordance with relevant planning instruments and policies.

The court considered whether the council's decision was based on relevant considerations and whether it was open to the council to make the decision in the circumstances. The court noted that the council's refusal was based on the potential impact on the visual amenity of the area and the character of the neighbourhood. However, the court found that the council had failed to adequately consider the orchard's existing use and the benefits of the netting structure. The court also found that the council's decision was not in accordance with relevant policies and planning instruments.

The court held that the council's decision was unreasonable and not based on relevant considerations. The court found that the orchard's continued use and the construction of the netting structure would not have a significant adverse impact on the visual amenity of the area or the character of the neighbourhood. The court also found that the benefits of the netting structure, such as preventing bird damage to the fruit, outweighed any potential adverse impact on the area. The court granted the appeal and ordered that the development application be determined by the grant of consent subject to certain conditions.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development application DA 10.2023.109.1 for the continuing use of an existing orchard, and construction of a netting structure around and over the existing orchard, at 92 Jerrara Road, Jerrara, legally described as Lot 202 DP 1095943, is determined by the grant of consent subject to the conditions at Annexure A.

(3) Exhibits C, E, 2, 4, 5 and 8 are returned. All other exhibits are retained.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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