Harwood v Kiama Municipal Council

[2024] NSWLEC 1697

Land and Environment Court

New South Wales

Medium Neutral Citation:

Harwood v Kiama Municipal Council [2024] NSWLEC 1697

Hearing dates:

Conciliation Conference on 6 June, 4 July, 1 August, 19 September and 9 October 2024

Date of orders:

01 November 2024

Decision date:

01 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Applicant's written request under cl 4.6 of the Kiama Local Environmental Plan 2011 (KLEP) seeking a contravention of the maximum height standard under cl 4.3 and floor space ratio under cl 4.4 of the KLEP is upheld.

(3) Development application No 10.2023.134.1, as amended, for the demolition of existing structures and construction of a new mixed-use building comprising basement car parking, commercial uses on ground floor and 8 residential apartments above at 110 and 114 Terralong Street, Kiama, also legally known as Lots 1,2, 3 and 4 of SP 85556, and Lot 3 in DP 250726 respectively, is determined by the grant of consent, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2015, s 5

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34

National Parks and Wildlife Act 1974

State Environmental Planning Policy (Sustainable Building) 2022

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.3, 2.4, 2.11, 2.12, 2.13, 4.6

Kiama Local Environmental Plan 2011, cll 4.3, 4.4, 4.6, 5.6, 5.10, 6.2

Category:

Principal judgment

Parties:

Robert Harwood (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
P Murray (Solicitor) (Applicant)
D Gunter (Solicitor) (Respondent)

Solicitors:
Addisons Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/67616

Publication restriction:

No

Judgment

COMMISSIONER:

Introduction

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA 10.2023.134.1) (Development Application). The Development Application sought consent for the demolition of two existing commercial buildings and construction of a new four storey mixed-use building comprising basement car parking, commercial uses on the ground and first floor, six residential apartments and a rooftop terrace, on land identified as Lots 1-4 in Strata Plan 85556 and Lot in Deposited Plan 250726, known respectively as 110 and 114 Terralong Street, Kiama (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Development Application was lodged with the respondent on 16 October 2023.

4. The Development Application was placed on public exhibition for 14 days between 23 October 2023 and 5 November 2023. Three objections were received in relation to the notification, relating to issues concerning excavation impacts, traffic and pedestrian safety, streetscape and design.

5. On 21 February 2024, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 6 June 2024 and adjourned on multiple occasions. I presided over the conciliation conference.

The Amended Development Application

7. On 6 September 2024, the Court granted leave to the applicant to rely on amended plans and documents (Amended Development Application). The amendments primarily related to:

1. removal of basement level 3 and reconfiguration of basement levels 1 and 2;

2. reconfiguration of the ground floor;

3. removal of the restaurant on level 1 to be replaced with residential apartments and general reconfiguration of level 1;

4. greater apartment mix of 2-bedroom and 3-bedroom apartments and general reconfiguration of levels 2 and 3;

5. reduction and design of the roof area including decrease in building height;

6. an updated cl 4.6 request in relation to building height;

7. an updated cl 4.6 request in relation to floor space ratio (FSR);

8. amended landscaping plans; and

9. amended stormwater plans.

8. The Amended Development Application was publicly re-notified for 14 days between 18 September 2024 and 2 October 2024. One submission was received relating to traffic impacts on Rosebank Place.

9. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. A signed s 34 agreement and agreed jurisdictional statement were provided to the Court on 9 October 2024.

10. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent.

11. 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.

Jurisdictional considerations

12. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

13. Signed owners’ consent has been provided from the registered properties of the Subject Land (see Class 1 Application, tabs 3-5).

State Environmental Planning Policy (Resilience and Hazards) 2021

14. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to the Subject Land as it is located within the “coastal zone” (and “coastal use area” more specifically) for the purposes of ss 2.3 and 2.4 of the RH SEPP and s 5 of the Coastal Management Act 2016.

15. Section 2.11 of the RH SEPP applies to development on land that is within the coastal use area and relevantly provides:

(1)  Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a)  has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage, and

(b)  is satisfied that—

(i)  the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii)  if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c)  has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

(2)  This section does not apply to land within the Foreshores and Waterways Area within the meaning of State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 6.

16. In respect of s 2.11 of the RH SEPP, the parties agree that:

1. The proposal does not result in a direct or indirect reduction to existing levels of foreshore access with the Subject Land being located approximately 400m from the foreshore and separated by a large public reserve.

2. The proposal will not cause adverse impacts to the existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability.

3. The proposal will not result in any adverse overshadowing, wind tunnel impacts or view loss from public places to foreshores and the property abuts public roads and an existing building.

4. There are no recorded Aboriginal cultural heritage practices or places applicable to the Subject Land. The Subject Land is fully developed from boundary to boundary and it is unlikely that there is extant Aboriginal cultural heritage. However, Condition 57 of the Agreed Conditions contains requirements for any suspected relic or Aboriginal object encountered to be notified to the Heritage Council and for works to cease until otherwise advised by the Heritage Council or the relevant authority under the National Parks and Wildlife Act 1974.

5. The proposal will enhance the character of the Kiama Town Centre and achieve a harmonious built form within its surrounding coastal and built environment.

17. Having regard to the agreed position of the parties, I confirm that I have considered the matters in s 2.11(1)(a), am satisfied of the matters in s 2.11(1)(a)(b),and have taken into account the surrounding coastal and built environment and the bulk, scale and size of the proposed development for the purposes of s 2.11(1)(c) of the RH SEPP.

18. Section 2.12 of the RH SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. The parties agree, and I accept, that the proposed development is not likely to cause an increased risk of coastal hazards on that land or other land for the reasons set out at [16].

19. Section 2.13 of the RH SEPP provides that development consent must not be granted to development on land within the coastal zone unless the consent authority has taken into consideration the relevant provisions of any certified coastal management program that applies to the land. The parties agree, and I accept, that presently there are no current coastal management programs that apply to the Subject Land.

20. Section 4.6 of the RH SEPP provides that:

a consent authority must not consent to the carrying out of any development on land unless –

it has considered whether the land is contaminated; and

If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

Before determining an application for consent to carry out development that would involve a change of use on any land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

….

….

21. The Amended Development Application seeks consent for a change of use, however it is not within an investigation area, nor has any development for a purpose of activity referred to in Table 1 of the Contaminated Land Planning Guidelines occurred on the Subject Land.

22. The parties agree that the Subject Land:

1. has no history of polluting land uses which may have created contamination;

2. has been continually used for business purposes since its construction in the 1960s;

3. has no documented history of dangerous manufacturing utilising heavy chemicals or metals or the storage of heavy chemicals or metals;

4. is not located within 500m of any industrial estates and the risk of surface migration and contamination is very low; and

5. the Subject Land is suitable for the proposed mixed-use development having regard to the provisions of the RH SEPP.

23. Having regard to the historical use of the Subject Land and the agreed conditions of consent (see Conditions 46 and 49) which provide for the preparation and implementation of an unexpected finds protocol, I am satisfied that the Site is suitable for the purposes for which development consent is sought.

State Environmental Planning Policy (Sustainable Buildings) 2022

24. In compliance with the relevant requirements under State Environmental Planning Policy (Sustainable Buildings) 2022, the applicant has obtained BASIX certificate (Certificate No 1419999M_03) prepared by ECO Certificates dated 29 August 2024.

Kiama Local Environmental Plan 2011

25. The Subject Land is zoned E1 Local Centre under the Kiama Local Environmental Plan 2011 (KLEP). Accordingly, development for the purpose of commercial premises and shop top housing is permitted with consent in the E1 zone. I have had regard to the zone objectives which are extracted below:

• To provide a range of retail, business and community uses that serve the needs of people who live in, work in or visit the area.

•  To encourage investment in local commercial development that generates employment opportunities and economic growth.

•  To enable residential development that contributes to a vibrant and active local centre and is consistent with the Council’s strategic planning for residential development in the area.

•  To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

•  To encourage mixed use buildings that include a component of housing located above retail and business premises.

•  To encourage development that is compatible with the commercial centres hierarchy.

•  To encourage development that has a high level of accessibility and amenity and prioritises pedestrians.

•  To encourage new development that provides diverse and active street frontages in order to attract pedestrian traffic and contribute to vibrant, diverse and functional streets and public spaces.

26. Pursuant to cl 4.3 of the KLEP, the maximum building height of 14m applies to the Subject Land (Height Standard). The Amended Development Application seeks a variation of 650mm at the highest point of a section of the building parapet, 1.95m for the rooftop lift enclosure and adjoining open pergola, and 2.375m for a proposed decorative turret. This equates to a variation of 4.6%, 14% and 17% respectively.

27. The applicant has prepared a written request, pursuant to cl 4.6 of the KLEP which seeks to justify the variation to the Height Standard (Height Request).

28. The Height Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6 of the KLEP (as it applied at the date of lodgement) and concludes that:

1. Compliance with the Height Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the KLEP), because the development achieves the objectives of the Height Standard notwithstanding the breach. Further, the Height Request acknowledges that the corner turret and open pergola are architectural features which are permitted to exceed the Height Standard pursuant to cl 5.6 of the KLEP.

2. There are sufficient environmental planning grounds to justify contravening the Height Standard (pursuant to cl 4.6(3)(b) of the KLEP), including that the breach is considered minor and primarily relates to architectural features which are permitted to exceed the Height Standard with consent under cl 5.6 of the KLEP, will not result in any significant adverse impacts, responds in part to the topography of the Subject Land, and exhibits good design in respect of an iconic and highly prominent corner location. Further the proposed development will promote the economic and orderly use and development of land and better achieves the objects of the EPA Act and KLEP (when compared with a height-compliant development).

3. The proposed development will be in the public interest because it is consistent with the objectives of the Height Standard and the objectives of the E1 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the KLEP).

29. Pursuant to cl 4.4 of the KLEP, a maximum FSR development standard of 2:1 applies to the Subject Land (FSR Standard). The Amended Development Application proposes an FSR of 2.39:1. This equates to a variation of 19.6%.

30. The applicant has prepared a written request, pursuant to cl 4.6 of the KLEP which seeks to justify the variation to the FSR Standard (FSR Request).

31. The FSR Request provides a detailed assessment of the Amended Development Application’s compliance with the matters raised in cl 4.6 of the KLEP (as it applied at the date of lodgement) and concludes that:

1. Compliance with the FSR Standard is unreasonable or unnecessary in the circumstances of the case (pursuant to cl 4.6(3)(a) of the KLEP), because the development achieves the objectives of the FSR Standard notwithstanding the breach.

2. There are sufficient environmental planning grounds to justify contravening the FSR Standard (pursuant to cl 4.6(3)(b) of the KLEP), including that the breach is considered minor, responds in part to the topography of the Subject Land, will not result in any significant adverse impacts, and responds to the need to provide accessible commercial and residential uses which requires additional FSR. Further the proposed development will promote the economic and orderly use and development of land and better achieves the objects of the EPA Act and KLEP (when compared with a FSR-compliant development).

3. The proposed development will be in the public interest because it is consistent with the objectives of the FSR Standard and the objectives of the E1 zone in which the development is proposed to be carried out (pursuant to cl 4.6(4)(a)(ii) of the KLEP).

32. The parties submit and I accept that the Height Request and FSR Request addresses the matters required to be demonstrated by cl 4.6(3) of the KLEP and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the Height Standard, FSR Standard, and the objectives for development in the E1 zone. The respondent does not contend that the contravention of the Height Standard or FSR Standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standards pursuant to cl 4.6(5) of the KLEP.

33. I am satisfied under cl 4.6(4) that the Height Request and FSR Request have adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the development proposed in the Amended Development Application will be in the public interest because it is consistent with the objectives of the Height Standard set out in cl 4.3(1), the objectives of the FSR Standard set out in cl 4.4(1), and the objectives for development in the E1 zone, for the reasons given in the Height Request and FSR Request.

34. I have also considered whether the contravention of the Height Standard or FSR Standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standards, pursuant to cl 4.6(5) of the KLEP. I find no grounds on which the Court should not uphold the Height Request or FSR Request.

35. The Subject Land is located in the near vicinity of several heritage listed items for the purposes of cl 5.10(5)(c) of the KLEP. The parties agree, and I accept, that:

1. the Amended Development Application incorporates traditional design elements, articulated facades and neutral colours and finishes to ensure that the proposed building will not detract from the heritage significance of those heritage items in its vicinity while remaining consistent with the E1 zone objectives; and

2. a heritage management document is not required to be prepared in respect of the Amended Development Application.

36. The Amended Development Application seeks consent for excavation and earthworks and is accompanied by a preliminary geotechnical report prepared by CMW Geosciences dated 23 July 2024 (Geotechnical Report). The Geotechnical Report concludes that the Subject Land is suitable for the proposes development subject to recommendations.

37. Clause 6.2(3) of the KLEP prescribes a number of mandatory matters that must be considered prior to the granting of development consent. Having regard to the Geotechnical Report and Agreed Conditions (see Conditions 51, 57, 58 and 65), I confirm that I have considered the matters set out in cl 6.2(3) of the KLEP.

Remaining matters in s 4.15(1) of the EPA Act

38. The matters set out in s 4.15(1) (b), (c), and (e) are addressed in the Statement of Environmental Effects prepared by Simplan dated August 2024 (see p 39).

39. In relation to s 4.15(1)(d), as set out at [4] the Development Application, as lodged, was notified between 23 October 2023 and 5 November 2023. Three written submissions objecting to the development were received in response to the notification.

40. As set out at [8], the Amended Development Application was notified between 18 September and 2 October 2024. One written submission was received objecting to the proposed development.

41. Additionally, one objector addressed the Court at the site view associated with the conciliation conference.

42. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

43. 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.

44. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

45. The Court orders that:

1. The appeal is upheld.

2. The Applicant's written request under cl 4.6 of the Kiama Local Environmental Plan 2011 (KLEP) seeking a contravention of the maximum height standard under cl 4.3 and floor space ratio under cl 4.4 of the KLEP is upheld.

3. Development application No 10.2023.134.1, as amended, for the demolition of existing structures and construction of a new mixed-use building comprising basement car parking, commercial uses on ground floor and 8 residential apartments above at 110 and 114 Terralong Street, Kiama, also legally known as Lots 1,2, 3 and 4 of SP 85556, and Lot 3 in DP 250726 respectively, is determined by the grant of consent, subject to the conditions set out in Annexure A.

N Targett

Commissioner of the Court

Annexure A

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Decision last updated: 01 November 2024