Enzo Developments Pty Ltd v Kiama Municipal Council

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

5. 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…