Moore v Kiama Council [2009] NSWLEC 1362

Moore v Kiama Council [2009] NSWLEC 1362

The SEPP 1 objection was not well founded to the full extent sought because Building A's proposed uppermost level was not a half storey or loft within the meaning of cl 50(2)(b), the proposed four-storey presentation was out of scale with the relevant streetscape, and from significant viewpoints in Belinda Street the building would take on the appearance of a four-storey building. However, the council's concession and the merits of the modified proposal justified sustaining the SEPP 1 objection only to the limited extent necessary to permit minor exceedences and a lowered Building A with one intermediate level removed and a rectilinear corner form.

Jurisdiction
Australia
Judgment Date
02 November 2009
Procedural Posture
Development Application Section 97 Appeal / Judgment After Conciliation Conference Was Terminated and Further Hearing Conducted
Outcome
Appeal upheld; development consent to be granted subject to conditions and revised plans deleting one level from Building A and reinstating the rectilinear corner form.
Legal Topics
['sepp 1 Objection' 'building Height' 'storeys and Loft Within Roof Space' 'streetscape and Amenity Impacts' 'development Control Plan Compliance']
['environmental Planning and Assessment' 'development Consent' 'land Use Planning'] ['sepp 1 Objection' 'building Height' 'storeys and Loft Within Roof Space' 'streetscape and Amenity Impacts' 'development Control Plan Compliance']

Case Brief

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Procedural Posture

Development Application Section 97 Appeal / Judgment After Conciliation Conference Was Terminated and Further Hearing Conducted

Legal Issues

  1. 1 ["Whether the applicant's SEPP 1 objection to compliance with cl 50(2)(b) of the Kiama Local Environmental Plan 1996 should be sustained for Building A." 'Whether the uppermost level of Building A was a top 1/2 storey forming a loft within the roof space of a building with a pitched roof.' 'Whether Building A would be in scale with adjacent and nearby buildings when viewed within the relevant streetscape.' 'Whether Building A would take on the appearance of a 4 storey building when viewed from any road to which it has a frontage.' 'Whether resident objections concerning traffic, privacy, noise, stormwater drainage and bulk and scale required modification or refusal of the proposal.']

Ratio Decidendi

The SEPP 1 objection was not well founded to the full extent sought because Building A's proposed uppermost level was not a half storey or loft within the meaning of cl 50(2)(b), the proposed four-storey presentation was out of scale with the relevant streetscape, and from significant viewpoints in Belinda Street the building would take on the appearance of a four-storey building. However, the council's concession and the merits of the modified proposal justified sustaining the SEPP 1 objection only to the limited extent necessary to permit minor exceedences and a lowered Building A with one intermediate level removed and a rectilinear corner form.

Court Disposition

Appeal upheld; development consent to be granted subject to conditions and revised plans deleting one level from Building A and reinstating the rectilinear corner form.

Orders

  • ['The objection pursuant to SEPP 1 to compliance with cl 50(2)(b) of the Kiama LEP is sustained to a limited extent.' 'The appeal is upheld.' 'Development Application DA 10.2008.358.1 for the erection of a mixed commercial and residential development on the corner of Noble and Belinda streets, Gerringong, is...