Grant v Kiama Council [2005] NSWLEC 58

Grant v Kiama Council [2005] NSWLEC 58

The appeals should be upheld because, subject to appropriate conditions and remedial works, the proposed facility was not prohibited, satisfied the relevant rural zone objectives as a small domestically-based enterprise, could be made acceptable through landscaping, operational and litter-management conditions, and did not create environmental, amenity, traffic or visual impacts warranting refusal. Operation was to be delayed until a residence was built on the site and was to remain valid only while the operator resided there. The archery range was not approved for use because the evidence did not establish adequate behind-target safety.

Jurisdiction
Australia
Judgment Date
04 July 2005
Procedural Posture
Class 1 Appeals in the Land and Environment Court of New South Wales / Appeals Against Kiama Council's Refusal of a Development Application and Refusals of Building Certificates for Structures Erected Without Approval
Outcome
Appeals upheld to the effect that the applicant should be permitted to operate the facility subject to conditions, with operation not to commence until a residence is constructed and only while the operator resides on the site; formal orders and conditions to be settled.
Legal Topics
['development Application Refusal' 'building Certificates' 'tourism and Recreation Facilities' 'rural Zoning' 'landscaping and Visual Impact' 'economic Viability' 'amenity Impacts' 'unapproved Structures']
['planning and Environment' 'local Government' 'development Consent'] ['development Application Refusal' 'building Certificates' 'tourism and Recreation Facilities' 'rural Zoning' 'landscaping and Visual Impact' 'economic Viability' 'amenity Impacts' 'unapproved Structures']

Case Brief

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Procedural Posture

Class 1 Appeals in the Land and Environment Court of New South Wales / Appeals Against Kiama Council's Refusal of a Development Application and Refusals of Building Certificates for Structures Erected Without Approval

Legal Issues

  1. 1 ['Whether development consent should be granted for the proposed tourist facility and associated works at 25 Princes Highway, Broughton.' 'Whether building certificates should issue for unapproved structures already erected on the site.' 'Whether the proposal was consistent with the objectives of the 1 (a) Rural "A" Zone under Kiama Local Environmental Plan 1996.' 'Whether landscaping could adequately address visual impact concerns.' 'Whether the economic viability of the proposed enterprise was a relevant basis for refusal.' 'Whether noise, litter, traffic and amenity impacts warranted refusal or could be addressed by conditions.' 'Whether public safety concerns prevented use of the archery range.']

Ratio Decidendi

The appeals should be upheld because, subject to appropriate conditions and remedial works, the proposed facility was not prohibited, satisfied the relevant rural zone objectives as a small domestically-based enterprise, could be made acceptable through landscaping, operational and litter-management conditions, and did not create environmental, amenity, traffic or visual impacts warranting refusal. Operation was to be delayed until a residence was built on the site and was to remain valid only while the operator resided there. The archery range was not approved for use because the evidence did not establish adequate behind-target safety.

Court Disposition

Appeals upheld to the effect that the applicant should be permitted to operate the facility subject to conditions, with operation not to commence until a residence is constructed and only while the operator resides on the site; formal orders and conditions to be settled.

Orders

  • ['The parties are to settle the form of the orders and conditions in each of the Class 1 proceedings as necessary to give effect to this decision.' 'The matter is set down for callover before the Registrar on 10 August 2005.' 'Liberty to restore before the Commissioner at 9am on two days notice for the arguing of...