Dach v Kiama Council [2007] NSWLEC 316

Dach v Kiama Council [2007] NSWLEC 316

The dwelling and associated area could be made technically acceptable through Level 3 construction, access and bushfire protection works, and continued use of the dwelling for a limited period with stringent conditions would achieve an acceptable degree of compliance with the LEP objectives, including revegetation, weed and exotic vegetation removal, and rehabilitation of high conservation value land. In the particular circumstances, strict compliance with the 20 hectare minimum allotment standard was unreasonable and the SEPP 1 objection was well founded. The garage was not necessary for the dwelling use and its retention would reduce opportunities for revegetation and rehabilitation, so...

Jurisdiction
Australia
Judgment Date
04 May 2007
Procedural Posture
Appeals Concerning a Building Certificate Application and a Development Application for Continued Use of Structures on the Property / Judgment After Hearing
Outcome
Development consent for use of the dwelling was granted for a limited period subject to conditions; building certificate relief was consequentially available subject to required works; consent for use of the garage was refused.
Legal Topics
['unauthorised Dwelling and Structures' 'kiama Local Environmental Plan 1996' 'state Environmental Planning Policy No 1 Objection' 'minimum Allotment Size' 'high Conservation Value Land' 'vegetation Management and Revegetation' 'bushfire Protection' 'limited Time Development Consent']
['planning and Environment Law' 'development Consent' 'building Certificates'] ['unauthorised Dwelling and Structures' 'kiama Local Environmental Plan 1996' 'state Environmental Planning Policy No 1 Objection' 'minimum Allotment Size' 'high Conservation Value Land' 'vegetation Management and Revegetation' 'bushfire Protection' 'limited Time Development Consent']

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Procedural Posture

Appeals Concerning a Building Certificate Application and a Development Application for Continued Use of Structures on the Property / Judgment After Hearing

Legal Issues

  1. 1 ['Whether building certificates should issue for the dwelling and associated pergola and barbecue area and for the garage structure.' 'Whether continued use of the dwelling and garage should be permitted under the Kiama Local Environmental Plan 1996.' 'Whether the SEPP 1 objection to the minimum allotment size development standard should be upheld.' 'Whether conditions requiring removal of ancillary structures, vegetation management, bushfire works and building upgrades would make the development acceptable.' "Whether a consent effectively limited to Ms Dach's continued occupation would be appropriate."]

Ratio Decidendi

The dwelling and associated area could be made technically acceptable through Level 3 construction, access and bushfire protection works, and continued use of the dwelling for a limited period with stringent conditions would achieve an acceptable degree of compliance with the LEP objectives, including revegetation, weed and exotic vegetation removal, and rehabilitation of high conservation value land. In the particular circumstances, strict compliance with the 20 hectare minimum allotment standard was unreasonable and the SEPP 1 objection was well founded. The garage was not necessary for the dwelling use and its retention would reduce opportunities for revegetation and rehabilitation, so...

Court Disposition

Development consent for use of the dwelling was granted for a limited period subject to conditions; building certificate relief was consequentially available subject to required works; consent for use of the garage was refused.

Orders

  • ['Development consent for use of the dwelling was to be granted for 15 months from the date of the orders, subject to conditions.' 'The conditions were to require vehicle access and car parking works, bushfire hazard reduction, demolition of structures to be demolished, and preparation and submission of a vegetation...