EPlanning Pty Ltd v The Council of the Municipality of Kiama

[2025] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:

EPlanning Pty Ltd v The Council of The Municipality of Kiama [2025] NSWLEC 1148

Hearing dates:

Conciliation conference on 26 February 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No 10.2023.176.1 for the construction of an Eco-Tourism facility including six eco-cabins, education facility workshop and associated infrastructure at Lot 11 in DP599429, being 261 Jamberoo Mountain Road, Jamberoo is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – eco-tourism facility – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 27, 37, 38

Kiama Local Environmental Plan 2011, cll 5.13, 6.2, 6.4, 6.5, 6.12

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Cases Cited:

McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category:

Principal judgment

Parties:

EPlanning Pty Ltd (Applicant)
The Council of The Municipality of Kiama (Respondent)

Representation:

Counsel:
J Smith (Applicant)
S Patterson (Solicitor)(Respondent)

Solicitors:
Mckees Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/48329

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The land at 261 Jamberoo Mountain Road, Jamberoo, has historically been used for farming, and is characterised by grass paddocks with two farm dams near the front boundary. The site also contains a watercourse known as Eura Creek, as well as tree corridors and areas of forest. The applicant seeks development consent for an eco-tourist facility, including 6 one-bedroom cabins for guest accommodation, an education facility workshop and associated infrastructure. The development application was lodged with the respondent on 24 January 2024. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged this appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The hearing of the appeal commenced in November 2024, but was adjourned part-heard. Following this adjournment and prior to the resumed hearing, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 February 2025. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was filed on the same date, and follows the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments in the amended development application include an updated Plan of Management, Vegetation Management Plan, and Special Ecological Features Report, as well as changes to the cabins to include an awning, bathroom window and composting toilet. The amended development application also includes a BASIX certificate.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that sets out the jurisdictional prerequisites to the exercise of the power to approve the development application. An updated Jurisdictional Statement was provided on 12 March 2025. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of an eco-tourist facility, which is a nominated permissible use in both the RU2 Rural Landscape zone and the C3 Environmental Management zone in which the site is located, pursuant to the Kiama Local Environmental Plan 2011 (KLEP).

• The proposed development does not breach any development standards that apply pursuant to the KLEP.

• Based on the Statement of Environmental Effects dated 24 March 2023, the Supplementary Statement of Environmental Effects dated 31 July 2024, and the Vegetation Management Plan dated 24 February 2025, I am satisfied of the matters in cl 5.13(3) of the KLEP.

• The proposed development includes excavation for the purpose only of the footings for the buildings. Given the limited excavation and based on the Statement of Environmental Effects dated 24 March 2023, I have considered the matters in cl 6.2(3) of the KLEP.

• The site contains land mapped as “biodiversity land”, and therefore cl 6.4 of the KLEP applies. Based on the site plan for the proposed development, the proposed location of the built form in an already disturbed area of the site, the Vegetation Management Plan dated 24 February 2025 and the Statement of Environmental Effects dated 24 March 2023, I have considered the matters in cl 6.4(3) of the KLEP and I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact.

• The site is identified as containing category 1 and 3 watercourses on the Riparian Land and Watercourses map, such that cl 6.5 of the KLEP applies. Based on the proposed location of the built form in an already disturbed area of the site and more than 40m from the top of the bank of Burra Creek, and based on the Statement of Environmental Effects dated 24 March 2023, I have considered the matters in cl 6.5(3) and I am satisfied that the development is designed, sited and will be managed to avoid any significant adverse environmental impact.

• Clause 6.12 of the KLEP concerns essential services. Based on the Plan of Management dated 25 February 2025, the Soil and Site assessment for Onsite Greywater disposal dated 24 February 2025, the Composting toilet certification and user manual documents, and the conditions of consent in Annexure A, I am satisfied that adequate arrangements have been made to make the essential services listed in cl 6.12 available when required.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Statement of Environmental Effects dated 24 March 2023 and its summary of the history of the site, I am satisfied that the land is unlikely to be contaminated.

• The site has frontage to Jamberoo Mountain Road, which is a classified road, and s 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies. In accordance with s 2.119, although vehicular access cannot be provided by a road other than the classified road, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development. Consistent with the requirements of s 2.119(2)(c), the proposed development has been designed with the built form located at least 70m away from the classified road to prevent or reduce the impacts associated with road traffic noise or vehicular emissions.

• Consistent with the requirements of s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the amended development application is accompanied by the BASIX certificate.

• The site is bush fire prone land, and therefore s 4.14 of the EPA Act applies. Based on the Bushfire Risk Assessment and Protection Measures report dated 10 October 2023, the Bushfire Joint Expert Report filed on 28 October 2024, the Supplementary Bushfire Assessment Report dated 7 June 2024 and the Supplementary Bushire Assessment Report dated 17 December 2024, I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a).

• The development application was notified between 24 January 2024 and 7 February 2024, and 17 written submissions were received. A number of residents also gave oral submissions at the commencement of the onsite view, prior to the adjournment of the hearing. Further written submissions were received after the parties reached agreement. I have considered the issues raised in those submissions.

6. Having reached the state of satisfaction that the decision is one that the Court could have made in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes:

1. The Council of the Municipality of Kiama, as the relevant consent authority has agreed, under s 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application number 10.2023.176.1 in accordance with the plans and documents listed below:

Dwg No	Revision No	Title/Description	Prepared By	Date/s
DA01	11	Notes & Location Plan	PRD Architects	25.02.25
DA02	12	Site Plan		25.02.25
DA03	17	Site Plan – Part of		25.02.25
DA04	14	Eco Centre - Ground Floor		25.02.25
DA05	12	Eco Centre - Elevations		25.02.25
DA06	12	Eco Centre - Sections		25.02.25
DA07	8	Eco Cabin - Finishes Schedule		25.02.25
DA08	9	Eco Cabin		25.02.25
DA09	9	Planting Plan		25.02.25
DA13	3	Existing Pad Sections		25.02.25

Document Name		Version Number			Date		Prepared By
Plan of Management		M240151			25 February 2025		Planning Ingenuity
Vegetation Management Plan (being Annexure 1 to the supplementary ecology joint expert report filed 3 February 2025).		6			24 February 2025		Whipbird Environmental
Special Ecological Features Report		3			3 December 2024		Land Eco Consulting
BASIX Certificate		No. 1784695M			24 February 2025		Efficient Living Pty Ltd

9. The Court orders that:

1. The appeal is upheld.

2. Development Application No 10.2023.176.1 for the construction of an Eco-Tourism facility including six eco-cabins, education facility workshop and associated infrastructure at Lot 11 in DP599429, being 261 Jamberoo Mountain Road, Jamberoo is determined by the grant of consent subject to the conditions set out in Annexure A.

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 14 March 2025