Grant v Kiama Council - [2005] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:
Grant v Kiama Council [2005] NSWLEC 58
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
J B Grant
RESPONDENT
Kiama Council

FILE NUMBER(S):
11245 of 2003

CORAM:
Moore C

KEY ISSUES:
Development Consent :-
Building certificates
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Local Government Act 1993
Environmental Planning and Assessment Model Povisions 1980
Illawarra Regional Environmental Plan No 1
Kiama Local Environmental Plan 1996
.

CASES CITED:
Super Studio v Waverley Council [2004] NSWLEC 91;
Williams v Blue Mountains City Council [2001] NSWLEC 73;
.

DATES OF HEARING: 3 August 2004, 6 June 2005

DATE OF JUDGMENT:

07/04/2005

EX TEMPORE JUDGMENT DATE:
02/18/2005

LEGAL REPRESENTATIVES:
APPLICANT
Ms L Bryne, barrister
INSTRUCTED BY
Thurlow Fisher Solicitors
RESPONDENT
Mr G Moggach, solicitor
Kearns and Garside

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

4 July 2005

03/11245 & 04/11655 J B Grant v Kiama Council

The consequences of the Court’s decision in this appeal will be Orders granting development consent (subject to detailed conditions) and the issuing, by the council, of a number of building certificates. The conditions are not reproduced as part of this decision. The terms of the building certificates will be prepared by the council in light of this decision. The terms of the conditions and the building certificates will be available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
JUDGMENT

1 Commissioner: These proceedings involve two Class 1 appeals concerning a property at Broughton. The first of them is an appeal against a refusal of a development application by Kiama Council (the council) and the second is an appeal against refusals by the council for building certificates for a number of structures already erected without approval. Travelling with these two files, although not part of the present proceedings, are proceedings commenced by the council in Class 4 of the Court’s jurisdiction seeking declarations and orders relating to various unapproved works and structures already erected by the applicant and which works and structures are, in various fashions, encompassed by these Class 1 proceedings.

2 The property to which all of these proceedings relate is known as 25 Princes Highway, Broughton and is Lot 11 DP 607155 (the site).

3 The site is situated opposite intersection of Foxground Road and the Princes Highway, south of Kiama. The site slopes down, generally, from the north to the south.

4 The site has an area of ~30 hectares and comprises cleared pastureland with some structures erected thereon pursuant to an approval granted in 1985 for a small-scale tourist facility. The significant elements of the 1985 consent which have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grant v Kiama Council

Details

AGLC: Grant v Kiama Council [2005] NSWLEC 58
Case: [2005] NSWLEC 58
Decision Date: 07/04/2005

CaseChat Overview and Summary

The case of Grant v Kiama Council involved an appeal against the refusal of development consent and building certificates for a proposed tourist facility at a site in Broughton. The applicant, J B Grant, sought to operate a facility that would include a variety of attractions such as a maze, mini-golf course, and an archery range. The Kiama Council had refused development consent and building certificates, raising concerns about the visual impact, economic viability, and compliance with planning controls. The Land and Environment Court of New South Wales was tasked with determining whether the appeals should be upheld.

The central legal issues were whether the proposed development would be visually acceptable, economically viable, and consistent with the planning controls for the site. The court examined the planning objectives for the zone, the proposed landscaping, and the economic expectations of the applicant. The court found that the applicant intended to reside on the site and operate the business himself, which aligned with the planning controls for small domestically-based enterprises. The court also determined that the proposed landscaping could be maintained effectively and that the enterprise could be considered small, thus satisfying the planning controls.

The court rejected the council's arguments about the visual impact and economic viability, emphasizing that the applicant's intentions and the planning controls were more relevant. Regarding specific elements of the proposal, the court decided that some structures would require additional works before being granted building certificates, while others would be approved subject to conditions. The court also concluded that the removal of a tree for the construction of the entrance was justified by public safety considerations.

The court ordered that the appeals be upheld, granting development consent subject to conditions and issuing building certificates for certain elements of the proposal. Formal orders and conditions were to be settled by the parties. The court also directed that the matter be called over for the arguing of costs or settlement of orders and conditions.

Orders