Spencer v Kiama Municipal Council (No 2)

[2024] NSWLEC 1526

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526

Hearing dates:

Conciliation conference on 12-13 August 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA 10.2023.98.1 for partial removal of existing structures and construction of new decks, balconies, retaining walls and landscaping on Lot 859 in DP 231616, also known as 110 North Kiama Drive, Kiama Downs subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – partial removal and new structures – conciliation conference – agreement between the parties – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 23

Kiama Local Environmental Plan 2011, cll 4.3, 4.4, 6.2, 6.6, 6.7

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6(a)

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

Texts Cited:

Kiama Development Control Plan 2020

Category:

Principal judgment

Parties:

Jennifer Spencer (First Applicant)
Ricardo Spencer (Second Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
R O’Gorman Hughes (Applicants)
K Mezenic (Solicitor) (Respondent)

Solicitors:
HWL Ebsworth (Applicants)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2024/00176325

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA 10.2023.98.1 by Kiama Municipal Council (the Respondent). The development application, as amended, seeks consent for alterations and additions to the existing dwelling at the property, including partial removal of existing structures and construction of new decks, balconies, retaining walls and landscaping. The development is proposed at 110 North Kiama Drive, Kiama Downs, also known Lot 859 in DP 231616.

2. The Court 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 2024. I presided over the conciliation conference.

3. At 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 signed agreement was subsequently filed and is supported by a Jurisdictional Statement. The decision agreed upon is for the grant of development consent to the development application, as amended, subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. 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 on the basis that:

1. The Applicants are the owners of the site and owners’ consent has been provided for the lodgement of the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. The development application was notified by the Respondent from 11 August to 25 August 2023. During the notification period a site survey was lodged, and the notification period was extended to 11 September 2023. At the conclusion of the notification period, a total of six submissions objecting to the development application was received. A copy of these submissions has been provided to the Court. Further, at the commencement of the conciliation conference oral submissions in objection were received from a member of the public. I am satisfied that the submissions have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3. The development application was lodged, but not finally determined prior to 1 October 2023. Hence, the now repealed State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies to the application rather than State Environmental Planning Policy (Sustainable Buildings) 2022. Pursuant to SEPP BASIX and the EPA Regulation, the development application is a BASIX-affected development. A BASIX certificate has been provided as part of the development application meeting the requirements of cl 6(a) of SEPP BASIX.

4. Pursuant to State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the site is mapped as being within the Coastal Environment area and the Coastal Use Area.

5. Section 2.10(1) of the SEPP RH precludes development consent on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the matters listed at subs (a)-(g). Having considered the location of the site, and its distance from the landscape features and processes that are the object of subs (a)-(g), I conclude the impact of the proposal to be acceptable.

6. Further, as required by s 2.10(2) I am also satisfied that the development has been designed, sited and will be managed to avoid an adverse impact to the listed matters. The proposed development has a limited footprint, is of a small scale and through design and the imposition of the annexed conditions and adverse impacts are satisfactorily managed.

7. Likewise, I have considered whether the proposal is likely to cause an impact of the sort at s 2.11 of SEPP RH. On the basis of the site’s distance from the shoreline, beach, headlands or rock platforms, and after considering arguments advanced in both the Statement of Environmental Effects and the Addendum to the Statement of Environmental Effects, I am satisfied the development is designed, sited and will be managed to avoid adverse of a sort in s 2.11(1)(a) of SEPP RH.

8. In arriving at this state of satisfaction, I have also considered the surrounding coastal and built environment, and the bulk, scale and size of the proposed development. Given the limited footprint and the small scale of the works proposed, I conclude the bulk, scale and size of the development as proposed is appropriate to the surrounding coastal and built environment of the locality in this part of Kiama Downs.

9. Pursuant to s 4.6 of SEPP RH the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The parties advise that the use of the area of the land to be utilised for residential purposes has been historically utilised for residential use and there are no known previous uses that would lead to the site being contaminated or unsuitable for the proposed use for residential purposes. The development application does not propose a change of use. The parties agree and I accept, on the details in Statement of Environmental Effects accompanying the development application, that s 4.6 of SEPP RH is satisfied.

10. Kiama Local Environmental Plan 2011 (LEP 2011) applies to the land which is zoned R2 Low Density Residential. Development for the purposes of a residential dwelling is permitted with consent in the zone. In determining the development application, I have given consideration to the objectives of the zone which are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To increase the supply of secondary dwellings for affordable rental housing stock.

•  To provide economic and employment opportunities for people who conduct business activities from their homes where these will not adversely affect the amenity of neighbours or the neighbourhood.

11. The development application does not exceed the maximum Floor Space Ratio control of 0.45:1 pursuant to cl 4.4(2) of LEP 2011.

12. Further, the proposed development does not exceed the 8.5 metre building height control under cl 4.3(2) of LEP 2011.

13. The development application proposes earthworks, cl 6.2 of LEP 2011 applies. The extent of earthworks proposed by the development application are minimal. As required by cl 6.2 Earthworks of LEP 2012, in granting consent to the development, with the assistance of the Statement of Environmental Effects and the architectural plans which form part of the development application, I have given consideration to the matters listed in subcl (3). Having considered the listed matters I am satisfied that none warrant the refusal of the development application.

14. In determining the development application, I have considered cl 6.6 ‘Development on the foreshore must ensure access’. With the assistance of the joint report of the planning experts, the Statement of Environmental Effects and the Addendum to the Statement of Environmental Effects I am satisfied that the works proposed will not detrimentally impact the listed matters.

15. Clause 6.7 Foreshore building line (FBL) applies to the site. By reference to the relevant mapping, some of the works proposed in the development application are forward of the mapped FBL. Clause 6.7(2) of LEP 2011 states:

(2)  Development consent must not be granted for development on land in the foreshore area except for the following—

(a)  the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area,

(b)  the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so,

(c)  development for the purposes of boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoors).

16. The parties agree, and I accept on the basis of the reasoning in the Addendum Statement of Environmental Effects, that the proposed development falls within the exception at subcl 6.7(2)(b). I accept the exceptional features of the site which, when considered collectively, make the works proposed in the foreshore area (forward of the FBL) appropriate are as follows:

1. The site is occupied by an existing dwelling which is sited centrally in the subject site. The existing dwelling is located close to but just to the west (the onshore side) of the foreshore building line. There is a very limited amount of site area remaining between the existing dwelling and the FBL;

2. There is a “kink” in the FBL as it crosses the subject site. The FBL is located further to the east (towards the coast) at the two points where it crosses the northern and southern side boundaries of the site, than in the middle of the site where the kink is located. The existence of the kink minimises the extent to which any alterations and additions can be carried out on the site, including incursion into the foreshore area by a projecting balcony which affects the views from the two neighbouring properties;

3. Until 2018 part of the existing dwelling extended into the foreshore area but was demolished under development consent 10.2017.307.1 due to its dilapidated and unsafe condition. But for the demolition of that part of dwelling, the extension, alteration or re-building of an existing building partly in the foreshore area would have been permissible under the exception at subcl. 6.7(2)(a);

4. the Applicant could rely on building approval 510/89 dated 23 November 1989 to reconstruct the balcony structure. To do so would have a greater impact on the scenic quality of the foreshore area;

5. the rear structures that are presently visible from the foreshore area, being the first-floor balcony, the retaining wall and the concrete slab at the rear, are dilapidated and detract from the scenic quality of the foreshore area; Unless that part of the existing building which remains is partially demolished and re-built the dilapidated structure will continue to present to the foreshore area. The proposed works are of a high quality of design and finish which is compatible with the existing character of the foreshore; and

6. the site is surrounded by other dwellings and associated structures which encroach significantly into the foreshore area. The proposed works are less extensive that those on adjoining or proximate properties.

17. Kiama Development Control Plan 2020 (DCP 2020) applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2020. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. 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 in s 34(3)(b) also requires me to “set out in writing the terms of the decision”.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

7. The Court notes that:

1. Kiama Municipal Council, as the relevant consent authority, has agreed under s 38(1) of the EPA Regulation, to the Applicant amending Development Application DA 10.2023.98.1 in accordance with the documents below:

Plan title	Plan number	Revision number	Drawn by	Date of plan
Architectural Plans
Notes	22_034DA-A-001	Rev A	Smith & Tzannes	13.06.2023
Level 0 (Ground)	22_034DA-A-100	Rev F	Smith & Tzannes	12.08.2024
Level 1	22_034DA-A-101	Rev F	Smith & Tzannes	12.08.2024
Roof	22_034DA-A-102	Rev F	Smith & Tzannes	12.08.2024
Elevations	22_034DA-A-200	Rev F	Smith & Tzannes	12.08.2024
Elevations South	22_034DA-A-201	Rev F	Smith & Tzannes	12.08.2024
External Views	22_034DA-A-902	Rev F	Smith & Tzannes	12.08.2024
Stormwater Engineering Plans
Concept Roof Drainage plan	SW1	Rev 0	E2 Civil and Structural Design	06.08.2024
Concept Ground Drainage plan	SW2	Rev 0	E2 Civil and Structural Design	06.08.2024
Concept Lower Ground Drainage plan	SW3	Rev 0	E2 Civil and Structural Design	06.08.2024
BASIX
BASIX Certificate	A499517	Smith & Tzannes	13.6.2023
Waste Management
Waste Management Plan	Smith & Tzannes	Undated
Approved Documents
Statement of Environmental Effects prepared by Smith & Tzannes dated 15 April 2023
Statement of Environmental Effects addendum – cl 6.7 Foreshore Building Line prepared by The Planning Studio dated 13 August 2024

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA 10.2023.98.1 for the partial removal of existing structures and the construction of new decks, balconies, retaining walls and landscaping on Lot 859 in DP 231616, also known as 110 North Kiama Drive, Kiama Downs subject to conditions contained in Annexure A.

D M Dickson

Commissioner of the Court

Annexure A (224595, pdf)

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Amendments

16 September 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip rule”), a typographical error in [7(1)] of the judgment and Condition 1 of Annexure A is corrected.

Decision last updated: 16 September 2024