Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526

Spencer v Kiama Municipal Council (No 2) [2024] NSWLEC 1526

The Commissioner was satisfied that the agreed grant of consent was a decision the Court could make because jurisdictional and planning prerequisites had been addressed: owner consent was provided, objections and public submissions were considered, BASIX requirements applied and were met, coastal and contamination impacts were acceptable, the development was permissible in the R2 Low Density Residential zone, relevant LEP and DCP controls were considered, and the works forward of the foreshore building line were justified by exceptional site features under cl 6.7(2)(b) of Kiama Local Environmental Plan 2011. The proceedings therefore had to be disposed of in accordance with the parties' s...

Jurisdiction
Australia
Judgment Date
30 August 2024
Procedural Posture
Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application DA 10.2023.98.1 / Final Orders Following a Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979 and an Agreement Under S 34(3)
Outcome
Appeal upheld; development consent granted to Development Application DA 10.2023.98.1 subject to conditions contained in Annexure A.
Legal Topics
['development Application Appeal' 'conciliation Conference' 'agreement Between the Parties' 'alterations and Additions to Dwelling' 'foreshore Building Line' 'coastal Environment Area and Coastal Use Area' 'basix Affected Development' 'contamination Assessment' 'local Environmental Plan Compliance']
['environmental and Planning Law' 'development Consent' 'land and Environment Court Procedure'] ['development Application Appeal' 'conciliation Conference' 'agreement Between the Parties' 'alterations and Additions to Dwelling' 'foreshore Building Line' 'coastal Environment Area and Coastal Use Area' 'basix Affected Development' 'contamination Assessment' 'local Environmental Plan Compliance']

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Procedural Posture

Class 1 Development Application Appeal Under S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Actual Refusal of Development Application DA 10.2023.98.1 / Final Orders Following a Conciliation Conference Under S 34 Aa(2)(a) of the Land and Environment Court Act 1979 and an Agreement Under S 34(3)

Legal Issues

  1. 1 ["Whether the Court could make orders giving effect to the parties' agreement to grant development consent to the amended development application." 'Whether statutory and planning controls relevant to the development application, including owner consent, public submissions, BASIX, coastal impacts, contamination, zoning, height, floor space ratio, earthworks, foreshore access, foreshore building line and the development control plan, had been addressed sufficiently for the agreed decision.' 'Whether works forward of the mapped foreshore building line were permissible under cl 6.7(2)(b) of Kiama Local Environmental Plan 2011 because of the levels, depth or other exceptional features of the site.']

Ratio Decidendi

The Commissioner was satisfied that the agreed grant of consent was a decision the Court could make because jurisdictional and planning prerequisites had been addressed: owner consent was provided, objections and public submissions were considered, BASIX requirements applied and were met, coastal and contamination impacts were acceptable, the development was permissible in the R2 Low Density Residential zone, relevant LEP and DCP controls were considered, and the works forward of the foreshore building line were justified by exceptional site features under cl 6.7(2)(b) of Kiama Local Environmental Plan 2011. The proceedings therefore had to be disposed of in accordance with the parties' s...

Court Disposition

Appeal upheld; development consent granted to Development Application DA 10.2023.98.1 subject to conditions contained in Annexure A.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to Development Application DA 10.2023.98.1 for the partial removal of existing structures and the construction of new decks, balconies, retaining walls and landscaping on Lot 859 in DP 231616, also known as 110 North Kiama Drive, Kiama Downs subject to...