Forte Kiama Heights Development Pty Ltd v Kiama Municipal Council [2024] NSWLEC 1390

Forte Kiama Heights Development Pty Ltd v Kiama Municipal Council [2024] NSWLEC 1390

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the modified development was substantially the same development as originally approved, relevant notification and ss 4.55 and 4.15 considerations had been addressed, the relevant Kiama Local Environmental Plan and State Environmental Planning Policy matters were satisfied, and the additional height and visual impacts were acceptable. Accordingly, s 34(3) of the Land Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
10 July 2024
Procedural Posture
Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Seeking to Modify Development Consent DA No. 10.2022.113.1 / Decision Following Mandatory Conciliation Conference Under S 34 of the Land Environment Court Act 1979 and Agreement Between the Parties
Outcome
The appeal was upheld and development consent DA 10.2022.113.1 was modified.
Legal Topics
['modification Application' 'development Consent' 'multi Dwelling Housing' 'r2 Low Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'coastal Use Area and Coastal Environment Area' 'building Height Development Standard']
['planning and Environmental Law' 'land and Environment Court Proceedings'] ['modification Application' 'development Consent' 'multi Dwelling Housing' 'r2 Low Density Residential Zone' 'conciliation Conference' 'agreement Between Parties' 'coastal Use Area and Coastal Environment Area' 'building Height Development Standard']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Under S 8.9 of the Environmental Planning and Assessment Act 1979 Seeking to Modify Development Consent DA No. 10.2022.113.1 / Decision Following Mandatory Conciliation Conference Under S 34 of the Land Environment Court Act 1979 and Agreement Between the Parties

Legal Issues

  1. 1 ["Whether the parties' agreed decision was a decision that the Court could have made in the proper exercise of its functions under s 34(3) of the Land Environment Court Act 1979." 'Whether the development as modified was substantially the same development as the development for which consent was originally granted.' 'Whether relevant matters under ss 4.55 and 4.15 of the Environmental Planning and Assessment Act 1979 and the relevant environmental planning instruments were satisfied.' 'Whether the proposed height exceedance and visual impacts were acceptable.']

Ratio Decidendi

The Court was satisfied that the parties' agreed decision was one the Court could make in the proper exercise of its functions because the modified development was substantially the same development as originally approved, relevant notification and ss 4.55 and 4.15 considerations had been addressed, the relevant Kiama Local Environmental Plan and State Environmental Planning Policy matters were satisfied, and the additional height and visual impacts were acceptable. Accordingly, s 34(3) of the Land Environment Court Act 1979 required the Court to dispose of the proceedings in accordance with the parties' decision.

Court Disposition

The appeal was upheld and development consent DA 10.2022.113.1 was modified.

Orders

  • ['The appeal is upheld.' 'Development consent DA 10.2022.113.1 is modified in the terms in Annexure A.' 'Development consent DA 10.2022.113.1 as modified by the Court is Annexure B.']