McCarthy v Kiama Municipal Council

[2023] NSWLEC 1492

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCarthy v Kiama Municipal Council [2023] NSWLEC 1492

Hearing dates:

Conciliation conference held on 23 August 2023

Date of orders:

30 August 2023

Decision date:

30 August 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application 10.2021.153.1, as amended, seeking secondary dwelling, swimming pool, access driveway, fencing, rainwater tank, associated landscaping works, minor external works to primary dwelling for ember protection, and the removal of one tree on Lot 172 Deposited Plan 1116158, also known as 290 Rose Valley Road, Rose Valley is determined by grant of consent, and subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a secondary dwelling – conciliation conference conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 197, ss 4.6, 4.14, 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cll 49, 55

Kiama Local Environmental Plan 2011, cll 2.3, 5.5, 6.2, 6.4, 6.5, 6.12

Land and Environment Court Act 1979, ss 34, 34AA

Rural Fires Act 1997

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Sch 7A, cll 2.1, 11.34

State Environmental Planning Policy (Primary Production and Rural Development) 2019, cl 10

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

Texts Cited:

Kiama Development Control Plan 2020

Category:

Principal judgment

Parties:

Gregory Ian McCarthy (First Applicant)
Rachel Leanne McCarthy (Second Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
E Ryan (Solicitor) (Respondent)

Solicitors:
Carter Ferguson Solicitors (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2023/80361

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application 10.2021.153.1 by Kiama Municipal Council (the Council), which as amended is seeking construction of a secondary dwelling with swimming pool, landscaping and associated engineering works, in addition to works to address the bushfire risk to the primary (existing) dwelling on Lot 172 Deposited Plan 1116158, also known as 290 Rose Valley Road, Rose Valley (hereafter the site).

Background

2. Development Application 10.2021.153.1 (the application) was lodged with Council on 2 July 2021, with seven written submissions received during the notification period. After internal review, the Council determined to refuse the application on 15 March 2022.

3. The applicant appealed against the deemed and then ultimate refusal of the application, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court agreed to a conciliation conference, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act), commencing in Court at the request of the parties. Two objectors provided written submissions at the conciliation.

5. The Council agreed for the applicant to amend the plans and documents that support the application, pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg).

6. Based on the amended application and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court. The parties agree that the contentions of Council have been resolved, and that the issues raised by the surrounding residents have been considered in their merit assessment.

7. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to ss 4.14 and 4.15(1), to grant consent to Development Application 10.2021.153.1, subject to conditions in Annexure A.

Jurisdictional prerequisites

8. The site is mapped as bushfire prone, therefore the Rural Fires Act 1997 is engaged. The amended application is supported by a Bushfire Assessment report and Certification, prepared by BPAD, dated 4 August 2023. The design of the proposed secondary building and the existing primary building have considered the Planning for Bushfire Protection 2019. There is an asset protection zone around the secondary building, having regard to the assessed bushfire risk, egress route and BAL-19 rated material to be used on the secondary dwelling. The primary dwelling will have minor external works to mitigate the assessed bushfire risk. The requirements of s 4.14 of the EPA Act have been sufficiently addressed.

9. Section 4.15(1) of the EPA Act establishes matters to be considered before determining the application. The following jurisdictional requirements have been specifically considered and are satisfied:

1. Kiama Local Environmental Plan 2011 (KLEP):

1. Pursuant to cl 2.3 of the KLEP, the proposed development is situated over land zoned RU2 Rural Landscape, E2 Environmental Conservation and E3 Environmental Management. The proposed development, as described to the Court, is permissible with consent and located within the RU2 zone. No works are proposed within the E2 and E3 zones on the site.

2. The amended application is supported by relevant plans and documents that sufficiently address the relevant objectives, aims, standards and provisions of the KLEP. Specifically relevant to the site and proposed development are cll 6.2, 6.4, 6.5 and 6.12, which are assessed as addressed.

3. The contention relating to the clustering of dwellings consistent with cl 5.5 of the KLEP is agreed as not applicable to the application, based on the date of determination. It is accepted that the State Environmental Planning Policy (Housing) 2021 came into effect on 26 November 2021, and that cl 11.34 of this SEPP (since repealed) imposed cl 5.5 on the KLEP. This clause was subsequently saved from consideration of the application by the imposition of cl 2.1(1)(a) of Schedule 7A in the SEPP Housing.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004:

1. A BASIX Certificate (1412177S) issued on 9 August 2023 is relevant to the proposed development, as amended, and is identified in the conditions of consent.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience):

1. The site has historically been used as agricultural (grazing) land and the Council is satisfied there are no records of contamination relating to the site. Council has appropriately considered the contamination status of the site, which satisfies the relevant requirements of s 4.6 of the SEPP Resilience. The conditions of consent address the importation of fill onto the site.

4. State Environmental Planning Policy (Primary Production and Rural Development) 2019 (SEPP Primary):

1. Based on the date the application was made and determined, SEPP Primary is engaged, and specifically cl 10. The supporting documents to the application, namely the amended plans that show the position of the dwelling in the landscape and protection of ecological habitats, together with expert assessment that the agricultural capacity of the land will not be adversely affected, address the requirements of cl 10.

5. Kiama Development Control Plan 2020 (KDCP):

1. The relevant requirements of the KDCP are generally complied with, based on the amended plans, supporting documents to the application and the conditions of consent. The original application was publicly notified in accordance with the KDCP, and the submissions received has been considered in the Council’s merit assessment of the application, and where appropriate, issues were addressed by amendments to the application and conditions of consent. The issues raised by the adjoining residents that relate to privacy and scenic vistas have been addressed by the amended dwelling location within the landscape and the proposed building design.

2. The Council agrees that the contentions that relate to the KDCP are resolved by amendments to the application and provision of further supporting documents that support the application.

10. Pursuant to cl 49 of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowner relevant to the application. All works are contained within the site, and subject to relevant approvals, as described in the conditions of consent.

Grant of consent

11. Based on the amended plans and supporting documents to the application, the parties explained to the Court that there are no jurisdictional impediments to the making of the agreement or for the Court in making the orders, as sought.

12. The Council has undertaken the appropriate merit assessment of the proposed development, including considering the resident submissions.

13. I am satisfied, based on the evidence before me, that there are no jurisdictional impediments to this agreement and that Development Application 10.2021.153.1 should be granted consent, as it satisfies the relevant requirements of ss 4.14 and 4.15 of the EPA Act.

14. As the parties' agreement 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.

15. The Court notes that:

1. The Kiama Municipal Council, as the relevant consent authority, has approved under clause 55(1) of the Environmental Planning and Assessment Regulation 2000, the applicant to amend Development Application 10.2021.153.1, as described below:

Title	Drawing no	Revision	Date
Architectural plans prepared by BHI Architects Pty Ltd
Cover Page	A.1000	A	09.08.2023
Detailed Site Analysis	A.1001	A	09.08.2023
Site Plan	A.1003	A	09.08.2023
Site Plan – Aerial	A.1004	A	09.08.2023
Lower Ground Floor	A.2001	A	09.08.2023
Ground Floor	A.2002	A	09.08.2023
South & East Elevation	A.3001	A	09.08.2023
North & West Elevation	A.3002	A	09.08.2023
Section A & B	A.3101	A	09.08.2023
Perspectives & Material Schedule	A.6001	A	09.08.2023
Photomontage Location Shots	A.7001	A	09.08.2023
Photomontage 1	A.7002	A	09.08.2023
Photomontage 2	A.7003	A	09.08.2023
Landscape plans prepared by Melissa Wilson Landscape Architects
Landscape Site Plan Landscape Strategy	LS01	B	10.08.2023
Documents
Bush Fire Assessment Report prepared by Bushfire & Evacuation Solutions	•	•	4 August 2023
BASIX Certificate No. 1412177S	9 August 2023
Nationwide House Energy Rating Scheme NatHERS Certificate No. #HR-2T84GQ-0	9 August 2023

2. The applicant has filed the plans and material that amend the Development Application 10.2021.153.1 with the Court on 16 August 2023.

16. The Court orders that:

1. The appeal is upheld.

2. Development Application 10.2021.153.1, as amended, seeking secondary dwelling, swimming pool, access driveway, fencing, rainwater tank, associated landscaping works, minor external works to primary dwelling for ember protection, and the removal of one tree on Lot 172 Deposited Plan 1116158, also known as 290 Rose Valley Road, Rose Valley is determined by grant of consent, and subject to the conditions set out in Annexure A.

S Bish

Commissioner of the Court

23.80361 Annexure A

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Decision last updated: 30 August 2023