Ellison v Kiama Municipal Council [2007] NSWLEC 709

Ellison v Kiama Municipal Council [2007] NSWLEC 709

The proposed development, although contravening the two storey standard, satisfies the underlying planning objectives, does not adversely affect bulk, scale, height, or visual amenity, and the SEPP 1 objection is well founded; the appeal is upheld and the height limitation is varied.

Jurisdiction
Australia
Judgment Date
22 October 2007
Procedural Posture
Appeal Under S 97 Environmental Planning and Assessment Act 1979 / Judgment
Outcome
Appeal upheld
Legal Topics
['development Consent' 'height Restrictions' 'sepp 1 Objection' 'storeys Control' 'bulk and Scale' 'swimming Pool']
['planning and Environment'] ['development Consent' 'height Restrictions' 'sepp 1 Objection' 'storeys Control' 'bulk and Scale' 'swimming Pool']

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Procedural Posture

Appeal Under S 97 Environmental Planning and Assessment Act 1979 / Judgment

Legal Issues

  1. 1 ['Whether the two storey limit in clause 50 of Kiama Local Environmental Plan 1996 should be strictly applied or varied via SEPP 1 objection' 'Whether the proposed development adversely impacts bulk, scale, height, or visual appearance' 'Precedential effect of permitting the third storey']

Ratio Decidendi

The proposed development, although contravening the two storey standard, satisfies the underlying planning objectives, does not adversely affect bulk, scale, height, or visual amenity, and the SEPP 1 objection is well founded; the appeal is upheld and the height limitation is varied.

Court Disposition

Appeal upheld

Orders

  • ['The appeal in respect of 82 North Kiama Drive, Kiama is upheld.' 'The SEPP 1 objection to vary the two storey height limitation in clause 50 Kiama LEP 1996 is allowed.' "The development application for an additional level of living and a swimming pool is approved subject to conditions contained in Annexure 'A'."...