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Sharp v Kiama Municipal Council

Sharp v Kiama Municipal Council

Case [2024] NSWLEC 1360 28 June 2024

Development Consent

Local Environmental Plan

Contravention of Development Standard

Appeal

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Sharp v Kiama Municipal Council [2024] NSWLEC 1360
Hearing dates: 22 and 23 February 2024
Date of orders: 28 June 2024
Decision date: 28 June 2024
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) The written request pursuant to cl 4.6 to justify the contravention of development standard in cl 4.2A of the Kiama Local Environmental Plan 2011 is upheld.
(2) The appeal is upheld.
(3) Development consent is granted to development application No 10.2022.43.1 for the construction of a dwelling house at 44 Halls Road, Jerrara legally described as Lot 63 in DP1056591 subject to the conditions of consent in Annexure A.
(4) All exhibits are retained.

Catchwords:
DEVELOPMENT APPEAL – residential development – dwelling house in rural zone – whether minimum lot size is a development standard capable of variation pursuant to cl 4.6 or whether it is a prohibition – no merit contentions – satisfaction of jurisdictional prerequisite prior to exercise of function as consent authority – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 1.4, 3.2, 3.20, 4.1, 4.2, 4.3, 4.15, 4.16, 8.7
Land and Environment Court Act 1979, ss 34AA, 39
Environmental Planning and Assessment Regulation 2021, s 38
Kiama Local Environmental Plan 2011, cll 1.2, 2.3, Pt 4, 4.1, 4.1AA, 4.1A, 4.1B, 4.1C, 4.1D, 4.1E, 4.1F, 4.2, 4.2A, 4.2B, 4.2C, 4.3, 4.4, 4.5, 4.6, 6.5
North Sydney Local Environmental Plan 1989, cl 14A
Penrith Local Environmental Plan2010, cll 4.3, 7.11
State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30AA
Yass Valley Local Environmental Plan 2013, cll 4.1, 4.1B

Cases Cited:
AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054
Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49
Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130; [2006] NSWCA 331
Canterbury Bankstown Council v Dib [2022] NSWLEC 79
Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75
Elwaw v Kiama Municipal Council [2022] NSW LEC 1395
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83
North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Kiama Development Control Plan 2020
Online Macquarie Dictionary 2024

Category: Principal judgment
Parties: Daniel James Sharp (First Applicant)
Louise Nancy Sharp (Second Applicant)
Kiama Municipal Council (Respondent)
Representation:
Counsel:
J McKelvey (Applicants)
D Gunter (Solicitor)(Respondent)
Solicitors:
Bick & Steele (Applicants)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2023/239088
Publication restriction: Nil

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and…

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 Sharp v Kiama Municipal Council

Details

AGLC: Sharp v Kiama Municipal Council [2024] NSWLEC 1360
Case: [2024] NSWLEC 1360
Decision Date: 28 June 2024

CaseChat Overview and Summary

The case of Sharp v Kiama Municipal Council involved the appellant, Mr. Sharp, appealing a decision made by the respondent, the Kiama Municipal Council, to refuse development consent for a dwelling house at a specified property in Jerrara. The dispute centred around the interpretation of certain clauses in the Kiama Local Environmental Plan 2011, particularly in relation to development standards and the justification for any contravention of these standards.

The legal issues before the court included whether the Council had correctly applied the development standards set out in cl 4.2A of the Plan and whether the Council's refusal of consent was justified under cl 4.6 of the Plan, which requires a justification for any contravention of the development standards. Additionally, the court needed to determine if the appellant's application for development consent was sufficiently compliant with the requirements of the Plan and if the Council's decision was lawful, reasonable, and procedurally fair.

The court found that the Council had not adequately justified its refusal of development consent, particularly in relation to cl 4.6 of the Plan. The court emphasised that the Council must provide clear and convincing reasons for any decision to contravene the development standards. Furthermore, the court held that the appellant's application met the requirements of the Plan, and the proposed dwelling complied with the necessary standards. The court concluded that the Council's decision was not supported by sufficient evidence and was therefore unreasonable. As a result, the appeal was upheld, and development consent was granted subject to the conditions set out in Annexure A.

Orders

Orders of the court

The Court orders:

(1) The written request pursuant to cl 4.6 to justify the contravention of development standard in cl 4.2A of the Kiama Local Environmental Plan 2011 is upheld.

(2) The appeal is upheld.

(3) Development consent is granted to development application No 10.2022.43.1 for the construction of a dwelling house at 44 Halls Road, Jerrara legally described as Lot 63 in DP1056591 subject to the conditions of consent in Annexure A.

(4) All exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Sharp v Kiama Municipal Council [2024] NSWLEC 1360

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 17 of 17 shown

Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council
[2023] NSWLEC 49 Para 32

…Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49 (“ Australian Unity” ) dealt with an application to set aside a development consent on the basis that the consent authority did not have power to gra…
Elwaw v Kiama Municipal Council
[2022] NSWLEC 1395 Para 12

…opment standard within the meaning of s 1.4 of the EPA Act that can be varied under cl 4.6 of the Kiama LEP”: see Elwaw v Kiama Municipal Council [2022] NSWLEC 1395 (“ Elwaw ”) at [19]. In that case, the Respondent Council specifically submitted that “cl 4.2A(3)(a) was a development standard to which the Court agreed…
Canterbury Bankstown Council v Dib
[2022] NSWLEC 79 Para 28

…Recently, the Chief Judge, Preston CJ, in his decision of Canterbury Bankstown Council v Dib [2022] NSWLEC 79 (“ Dib” ) distils the tests set out in previous decisions and at [50] identified that the definition of “development standards”, reproduced above in this judgment at [14], requires firstly identification of…
Elimatta Pty Ltd v Read
[2021] NSWLEC 75 Para 41

…ning the clause and the KLEP. The Respondent refers the Court to the general principles as summarised by Robson J in Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 (“ Elimatta ”) at [43]-[45] as follows:…
As Investment Company Pty Ltd v Liverpool City Council
[2019] NSWLEC 1054 Para 75

…I have considered reasons given by Gray C, in AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054 at [61] as to why a particular clause did not meet the definition of a development standard which I reproduce as follows:…
Initial Action Pty Ltd v Woollahra Municipal Council
[2018] NSWLEC 118 Para 51

…urrence of the Planning Secretary by reason of s 39(6) of the LEC Act; see Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (‘ Initial Action ’) at [29]. I will deal with the considerations of cl 4.6(5) of the KLEP below at [120] in the context of the second contention.…
SZTAL v Minister for Immigration and Border Protection
[2017] HCA 34

…ng Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]: “The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the sam…
4nature Incorporated v Centennial Springvale Pty Ltd
[2017] NSWCA 191

…[2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]. 45. The approach described above is also consistent with the strictures of s 33 of the Interpretation Act, which applies to en…
Wingecarribee Shire Council v De Angelis
[2016] NSWCA 189 Para 20

…vironmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]. 45. The approach described above is also con…
Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council
[2015] NSWLEC 83 Para 33

…The Respondent relies on the reasoning of Pain J at [44]-[51] in the decision of Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 (“ Karimbla”) , where she considers the second Poynting step no specification in relation to an aspect of the development and concludes at [43] that ““N…
Tovir Investments Pty Ltd v Waverley Council
[2014] NSWCA 379 Para 54

…terpretation nor require “laxity or flexibility” when construing environmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [20…
Wehbe v Pittwater Council
[2007] NSWLEC 827

…pal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Kiama Development Control Plan 2020 Online Macquarie Dictionary 2024 Category: Principal judgment Parties: Daniel J…
Blue Mountains City Council v Laurence Browning Pty Ltd
[2006] NSWCA 331 Para 2

…nt for a dwelling house … is indicative of it being a prohibition ( Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130; [2006] NSWCA 331 (“Laurence Browning”) at [93] and Karimbla at [32])…
Cranbrook School v Woollahra Municipal Council
[2006] NSWCA 155

…. These general principles are applicable to the interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. In this respect, while environmental planning instruments should be interpreted in a practical manner (such that meticulou…
Strathfield Municipal Council v Poynting
[2001] NSWCA 270 Para 27

…The Respondent relies on the two-step approach adopted in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 (“ Poynting ”) described as requiring consideration of:…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53

…read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 a…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 69

…eflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]: “The st…

Legislation cited in this decision · 2

Environmental Planning and Assessment Act 1979 (NSW)
1.4, 3.2, 3.20, 4.1, 4.15, 4.16, 4.2, 4.... 10 mentions (from Para 1)
Land and Environment Court Act 1979 (NSW)
34AA, 39 3 mentions (from Para 2)

Medium Neutral Citation:	Sharp v Kiama Municipal Council [2024] NSWLEC 1360
Hearing dates:	22 and 23 February 2024
Date of orders:	28 June 2024
Decision date:	28 June 2024
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The written request pursuant to cl 4.6 to justify the contravention of development standard in cl 4.2A of the Kiama Local Environmental Plan 2011 is upheld. (2) The appeal is upheld. (3) Development consent is granted to development application No 10.2022.43.1 for the construction of a dwelling house at 44 Halls Road, Jerrara legally described as Lot 63 in DP1056591 subject to the conditions of consent in Annexure A. (4) All exhibits are retained.
Catchwords:	DEVELOPMENT APPEAL – residential development – dwelling house in rural zone – whether minimum lot size is a development standard capable of variation pursuant to cl 4.6 or whether it is a prohibition – no merit contentions – satisfaction of jurisdictional prerequisite prior to exercise of function as consent authority – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 1.4, 3.2, 3.20, 4.1, 4.2, 4.3, 4.15, 4.16, 8.7 Land and Environment Court Act 1979, ss 34AA, 39 Environmental Planning and Assessment Regulation 2021, s 38 Kiama Local Environmental Plan 2011, cll 1.2, 2.3, Pt 4, 4.1, 4.1AA, 4.1A, 4.1B, 4.1C, 4.1D, 4.1E, 4.1F, 4.2, 4.2A, 4.2B, 4.2C, 4.3, 4.4, 4.5, 4.6, 6.5 North Sydney Local Environmental Plan 1989, cl 14A Penrith Local Environmental Plan2010, cll 4.3, 7.11 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 30AA Yass Valley Local Environmental Plan 2013, cll 4.1, 4.1B
Cases Cited:	AS Investment Company Pty Ltd v Liverpool City Council [2019] NSWLEC 1054 Australian Unity Funds Management Ltd in its capacity as Responsible Entity of the Australian Unity Healthcare Property Trust v Boston Nepean Pty Ltd & Penrith City Council [2023] NSWLEC 49 Blue Mountains City Council v Laurence Browning Pty Ltd (2006) 150 LGERA 130; [2006] NSWCA 331 Canterbury Bankstown Council v Dib [2022] NSWLEC 79 Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 Elwaw v Kiama Municipal Council [2022] NSW LEC 1395 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83 North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; [2001] NSWCA 270 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Kiama Development Control Plan 2020 Online Macquarie Dictionary 2024
Category:	Principal judgment
Parties:	Daniel James Sharp (First Applicant) Louise Nancy Sharp (Second Applicant) Kiama Municipal Council (Respondent)
Representation:	Counsel: J McKelvey (Applicants) D Gunter (Solicitor)(Respondent) Solicitors: Bick & Steele (Applicants) Sparke Helmore Lawyers (Respondent)
File Number(s):	2023/239088
Publication restriction:	Nil