Vibuild Pty Ltd v Kiama Municipal Council - [2004] NSWLEC 396

Land and Environment Court

of New South Wales

CITATION: Vibuild Pty Ltd v Kiama Municipal Council [2004] NSWLEC 396

PARTIES:
APPLICANT
Vibuild Pty Ltd
RESPONDENT
Kiama Municipal Council

FILE NUMBER(S): 11329 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Refusal of detached dual occupancy - streetscape - front setback - views - bulk

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Kiama Local Environmental Plan 1996
Kiama Development Control Plan No. 7
Kiama Development Control Plan No. 36
State Environmental Planning Policy No. 71

CASES CITED:

DATES OF HEARING: 08/03/2004

DATE OF JUDGMENT: 03/12/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Parry, barrister
RESPONDENT
Mr V Moggach, solicitor
SOLICITORS
Kearns and Garside

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

12 March 2003

11329 of 2003 Vibuild Pty Ltd v Kiama Municipal Council

JUDGMENT

1 This was a class 1 appeal No.11329 of 2003 between Vibuild Pty Ltd and Kiama Municipal Council in regard to the refusal of detached dual occupancy development at 27 Pacific Avenue, Werri Beach. The area had recently been sewered and this enabled the council to permit dual occupancy development.

2 A control plan, Development Control Plan No.7, had been adopted to deal with such applications. The use was permissible in the Residential 2(a) Zone under the Kiama Local Environmental Plan 1996. The site was opposite the beach reserve and was relatively flat. There was an existing two-storey fibro holiday cottage on the site. It was to be demolished.

3 One unit was towards the front of the lot containing, on the ground floor, two bedrooms, a living room and rumpus room and two bathrooms. On the first floor were three bedrooms, a lounge and kitchen and two bathrooms. It had a flat roof and was rendered block work walls. At the rear was a courtyard and garage serving the front unit. Off the driveway at the rear was another garage and the second unit which was a single-storey rendered block work building with a sheet metal hipped roof containing three bedrooms, a living room, kitchen and two bathrooms.

4 This rear unit had along the back fence a larger private courtyard than the front unit. The courtyard of this rear unit had a young Norfolk Island pine tree at its northern end about 10 m tall. This courtyard would be private whereas the front unit would probably prefer to use the front garden of the development because that was where the ground floor living room faced and it was towards the ocean. The private courtyard at the rear of the front unit was fully paved and would probably be used mainly as a service yard, although it was accessible off the rumpus room.

5 The driveway was on the northern side adjoining 28 Pacific Avenue, a two-storey solid brick house with tiled roof. Number 28 was setback 14.53 m from the street boundary and the existing house on the subject site was about the same. On the south side…

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.

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Details

Case: [2004] NSWLEC 396
Decision Date: 03/12/2004

CaseChat Overview and Summary

Vibuild Pty Ltd sought to appeal the decision of the Kiama Municipal Council to refuse a development application for a detached dual occupancy on a site at Werri Beach. The site was opposite the beach reserve and relatively flat. The appeal was heard by the Land and Environment Court of New South Wales. The primary issues for the court to decide were whether the proposed development complied with the relevant planning controls and if it was in the public interest to allow the development.

The court examined whether the proposed dual occupancy complied with the relevant provisions of the Kiama Development Control Plan No. 7 and Kiama Development Control Plan No. 36. The applicant argued that the front setback should comply with Kiama DCP No. 36, which set a 7.6 m setback, while the council argued that Kiama DCP No. 7 required the front building line to match the existing development, which was approximately 14.5 m. The court found that Kiama DCP No. 7 was the primary control for dual occupancy development and that the proposed front setback of 6.6 m was inconsistent with the existing building line. The court also found that the proposal had multiple departures from the requirements of the development control plans, which would result in an over-development of the site and have unsatisfactory impacts on the neighbourhood.

The court concluded that the refusal of the development application was appropriate because the proposal did not comply with the planning controls and would have unacceptable impacts on the streetscape and its neighbours. The public interest in maintaining the existing quality and character of the precinct and protecting the residential amenity of existing residents outweighed the applicant's interest in developing the site. The appeal was dismissed, and the exhibits were returned to the parties except for certain documents.

In summary, the court found that the proposed development did not comply with the relevant planning controls and that the public interest in maintaining the existing quality and character of the precinct and protecting the residential amenity of existing residents outweighed the applicant's interest in developing the site. The appeal was dismissed, and the development application was refused.

Orders