Elwaw v Kiama Municipal Council [2022] NSWLEC 1395

Elwaw v Kiama Municipal Council [2022] NSWLEC 1395

Clause 4.2A of the Kiama Local Environmental Plan 2011 is a development standard subject to variation under cl 4.6, and the applicant's written request satisfies the requirements of cl 4.6(3); as compliance is unnecessary in the circumstances and the objectives of the standard and the zone are achieved, development consent should be granted in accordance with the parties' agreement.

Jurisdiction
Australia
Judgment Date
25 July 2022
Procedural Posture
Development Appeal / Final Determination After Conciliation and Agreement
Outcome
Appeal upheld; development approved subject to conditions
Legal Topics
['development Standards' 'minimum Lot Size' 'variation of Local Environmental Plan' 'clause 4.6 Requests' 'development Application Appeals']
['planning Law' 'environmental Law'] ['development Standards' 'minimum Lot Size' 'variation of Local Environmental Plan' 'clause 4.6 Requests' 'development Application Appeals']

Case Brief

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Procedural Posture

Development Appeal / Final Determination After Conciliation and Agreement

Legal Issues

  1. 1 ['Whether the variation of the minimum lot size development standard under cl 4.2A Kiama Local Environmental Plan 2011 can be justified under cl 4.6' 'Whether the amended development application should be granted consent']

Ratio Decidendi

Clause 4.2A of the Kiama Local Environmental Plan 2011 is a development standard subject to variation under cl 4.6, and the applicant's written request satisfies the requirements of cl 4.6(3); as compliance is unnecessary in the circumstances and the objectives of the standard and the zone are achieved, development consent should be granted in accordance with the parties' agreement.

Court Disposition

Appeal upheld; development approved subject to conditions

Orders

  • ['The appeal is upheld.' 'The clause 4.6 request seeking to vary the minimum lot size for erection of a dwelling house development standard (cl 4.2A of Kiama Local Environmental Plan 2011) prepared by Chapman Planning Pty Ltd dated 3 July 2022 is upheld.' "Development Application DA 10.2020.190.1 for construction of...