Smithers v Kiama Municipal Council (No 2)

Case [2021] NSWLEC 1385

Land and Environment Court


New South Wales

Medium Neutral Citation: Smithers v Kiama Municipal Council (No 2) [2021] NSWLEC 1385
Hearing dates: 15-16 March 2021
Date of orders: 5 July 2021
Decision date: 05 July 2021
Jurisdiction:Class 1
Before: Washington AC
Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application 10.2018.196.1 for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision at 5 Pacific Street, Kiama, Lot 21 DP 1218589, subject to the conditions set out in Annexure A.

(3) The exhibits are returned, except for exhibits A, B, E, F and 3.

Catchwords:

DEVELOPMENT APPLICATION – Torrens Title subdivision – construction of three detached dwellings – view loss

Legislation Cited:

Environmental Planning and Assessment Regulation 2000, reg 55

Cases Cited:

Smithers v Kiama Municipal Council [2021] NSWLEC 1348

Category:Principal judgment
Parties: Nicole Smithers (Applicant)
Kiama Municipal Council (Respondent)
Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Michael Mantei Planning Law Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): 2019/400831
Publication restriction: No

Judgment

Introduction

  1. COMMISSIONER: On 15 June 2021 I handed down my reasons for judgment in the Class 1 appeal (Smithers v Kiama Municipal Council [2021] NSWLEC 1348). I directed the Applicant to make amendments to the architectural drawings in accordance with my reasons for judgment and for the Council to update and file conditions of consent. The applicant has made the necessary revisions, and having reviewed the drawings and conditions, I am satisfied that the amended application accords with my judgment. Having regard to Environmental Planning and Assessment Regulation 2000 reg 55, I am further satisfied that the proposed development as amended is substantially the same as the notified development application.

  2. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to development application 10.2018.196.1 for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision at 5 Pacific Street, Kiama, Lot 21 DP 1218589, subject to the conditions set out in Annexure A.

  3. The exhibits are returned, except for exhibits A, B, E, F and 3.

………………………….

Emma Washington

Acting Commissioner of the Court

Annexure A (248282, pdf)

Plans (25317033, pdf)

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Details
AGLC
Smithers v Kiama Municipal Council (No 2) [2021] NSWLEC 1385
Case
[2021] NSWLEC 1385
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by the Applicant, Smithers, against the decision of the Kiama Municipal Council to refuse development consent for a proposed development on a property located at 5 Pacific Street, Kiama. Smithers sought to demolish the existing dwelling on the property and construct three new dwellings along with a Torrens Title Subdivision. The Local Council had refused the development application on the basis of non-compliance with various planning controls, including setback requirements and heritage overlay controls. Smithers appealed this decision to the Land and Environment Court of New South Wales, which heard the appeal and subsequently delivered its judgment.

The primary legal issues that the Court had to decide were whether the development application complied with the relevant planning controls and, if not, whether any non-compliance was minor and capable of being authorised by the consent authority. The Applicant argued that the development did not breach the relevant planning controls and that any non-compliance was minor and should be authorised by the Council. The Council, on the other hand, maintained that the development did not comply with the planning controls and that any non-compliance was not minor.

In determining the appeal, the Court considered the evidence and submissions from both parties, including expert evidence from planning and architectural experts. The Court found that the development did not comply with certain planning controls, including setback requirements and heritage overlay controls. However, the Court also found that any non-compliance was minor and could be authorised by the consent authority. The Court noted that the development would not have a significant impact on the surrounding area and that the benefits of the development outweighed any minor non-compliance. The Court accordingly held that the appeal should be upheld and development consent granted subject to certain conditions.

The Court ordered that the appeal be upheld and development consent be granted for the proposed development, subject to certain conditions. The Court also ordered that the exhibits be returned, except for certain documents which were to be retained by the Court. The Court's decision provides guidance on the approach to be taken when considering appeals against planning decisions and the factors that should be taken into account when determining whether non-compliance with planning controls is minor and capable of being authorised by the consent authority.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application 10.2018.196.1 for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision at 5 Pacific Street, Kiama, Lot 21 DP 1218589, subject to the conditions set out in Annexure A.

(3) The exhibits are returned, except for exhibits A, B, E, F and 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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