Sciacchitano v The Council of the Municipality of Kiama (No 2)

[2019] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sciacchitano v The Council of the Municipality of Kiama (No 2) [2019] NSWLEC 1448
Hearing dates:	Conciliation conference on 12 August 2019; 2 September 2019; 16 September 2019; 19 September 2019
Date of orders:	19 September 2019
Decision date:	19 September 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on 'Development Application Drawings - I' filed on 16 September 2019; and (2) Development Application No. 10.2017.286.1, for the construction of a detached dual occupancy on the land described as Lot 1 in DP 1045061, also known as 35 Bele Place, Kiama NSW 2533 (Site) is approved subject to the conditions of consent set out in Annexure 'A'. (3) The Applicant and the Respondent are to pay their own costs in these proceedings.
Catchwords:	DEVELOPMENT APPLICATION – detached dual occupancy - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Kiama Local Environmental Plan 2011 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Cases Cited:	Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 King v Great Lakes Shire Council (1986) 58 LGRA 366 North Sydney Council v Ligon 302 Pty Ltd (1996) 137 ALR 644 Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55
Category:	Principal judgment
Parties:	Robert Sciacchitano (Applicant) The Council of the Municipality of Kiama (Respondent)
Representation:	Counsel: S Nash (Applicant) H Irish (Respondent)   Solicitors: Carter & Ferguson (Applicant) McCullough Robertson Lawyers (Respondent)
File Number(s):	2018/387906
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal against the refusal of a development application for a detached dual occupancy on the land described as Lot 1 in DP 1045061, also known as 35 Bele Place, Kiama. 35 Bele Place is a large residential lot and contains an existing dwelling house. The proposed development is for the construction of an additional dwelling on the property, that, together with the existing dwelling on the site, will form a detached dual occupancy. The appeal is lodged 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 [17] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference commenced on 12 August 2019, and continued by telephone on 2, 16 and 19 September 2019. I presided over the conciliation conference.

3. The conciliation conference was initially held on-site and commenced with a site inspection at 35 Bele Place, Kiama (“the site”). The site has an area of 2922m² and is a battle-axe shape. Access to the site is gained through a shared access corridor in the form of reciprocal rights of carriageway registered on title, over which eight of the lots in the residential estate, including 35 Bele Place, gain access.

4. The new detached dwelling is proposed to be adjacent to the eastern boundary of the site, which is the boundary of the adjacent property at 35A Bele Place, and will also be accessed from the access corridor formed from the rights of carriageway.

5. Following the initial adjournment of 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 decision agreed upon is for leave to be granted to amend the development application by amendments to the plans, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The agreement was reached as a result of those amended plans which, inter alia, result in a building footprint for the proposed dwelling that is reduced in length (depth) from that originally the subject of the proceedings, and with a greater setback to the eastern boundary. This amendment therefore increases the distance of the proposed new dwelling from the property at 35A Bele Place, and decreases the length of the new dwelling as viewed from their property.

6. 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the reasons that follow.

7. Firstly, I am satisfied that the applicant owns the site and consented to the making of the development application.

8. The Council initially raised an issue that owner’s consent from the owners of the land burdened by the right of carriageway benefiting the site was required, and had not been obtained. The Council raised this in Contention 1 as being necessary so that there could be use of the shared access corridor over the rights of carriageway for the purposes of the development. If this was correct, this would be fatal to the development application and would mean that the terms of the decision agreed to by the parties would not be a decision that the Court can make in the proper exercise of its functions.

9. However, I am satisfied that owner’s consent from the owners of the land burdened by the rights of carriageway is not necessary in circumstances where there are no works proposed on the rights of carriageway or the shared access corridor.  A development application does not need to extend to land that is “necessarily involved in the use of the land the subject of the application” (Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55, at 62, per Cripps CJ LEC; see also King v Great Lakes Shire Council (1986) 58 LGRA 366). Further, consistent with the decision of the High Court in North Sydney Council v Ligon 302 Pty Ltd (1996) 137 ALR 644, owner’s consent from the owner of servient land is not required for a proposed development that relies on the use of a right of way over the servient land, where the servient land does not form part of the development application.

10. I note also that the question of whether another development consent is required to achieve lawful access over the shared right of carriageway for construction and use of the proposed dual occupancy, as outlined in Contention 1A, is not relevant to the question as to whether the decision agreed upon by the parties is one that the Court can make in the proper exercise of its functions. That is, even if a separate consent is required for the use of the right of carriageway (which, of note, would be inconsistent with the Court’s reasons in Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202), the existence of that consent is not a jurisdictional precondition to the grant of consent for the proposed development on the site.

11. Secondly, the development works are for the purposes of a dual occupancy, which is a permissible use in the R5 Large Lot Residential zone pursuant to the Kiama Local Environmental Plan 2011 (“KLEP 2011”).

12. Thirdly, the proposed development does not contravene any development standard in the KLEP 2011 or any other applicable environmental planning instrument.

13. Fourthly, the amended plans were accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

14. Finally, consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Based on the assessment report of the council officers dated 8 June 2018, there is no historic use known by the Council that would cause the site to be unsuitable for the proposed development.

15. Having reached the state of satisfaction that the decision is one that the Court could make 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)).

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, 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.

17. The Court orders that:

1. The Applicant is granted leave to rely on ‘Development Application Drawings - I’ filed on 16 September 2019; and

2. Development Application No. 10.2017.286.1, for the construction of a detached dual occupancy on the land described as Lot 1 in DP 1045061, also known as 35 Bele Place, Kiama NSW 2533 (Site) is approved subject to the conditions of consent set out in Annexure ‘A’.

3. The Applicant and the Respondent are to pay their own costs in these proceedings.

……………………………

J Gray

Commissioner of the Court

Annexure A (85.7 KB, pdf)

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Decision last updated: 20 September 2019