Smithers v Kiama Municipal Council [2021] NSWLEC 1348

Smithers v Kiama Municipal Council [2021] NSWLEC 1348

With modifications to remove clerestory elements and redesign balconies as described in deferred commencement conditions 1(a) and 1(b), the proposal achieves the objectives and controls of the Kiama Local Environmental Plan 2011 and Kiama Development Control Plan 2012. The development results in no unacceptable visual, privacy, or amenity impacts, and achieves reasonable view sharing in accordance with established legal principles.

Parties
Applicant: Nicole Smithers; Respondent: Kiama Municipal Council
Jurisdiction
Australia
Judgment Date
15 June 2021
Procedural Posture
Appeal Against Development Application Refusal / Judgment After Hearing
Outcome
Appeal upheld, consent granted subject to modifications and further directions.
Legal Topics
Development Application, Subdivision, View Loss, Amenity Impacts, Bulk, Scale and Density, Planning Controls
Planning and Environment Law Development Application Subdivision View Loss Amenity Impacts Bulk, Scale and Density Planning Controls

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Parties

Nicole Smithers

Applicant

Kiama Municipal Council

Respondent

Procedural Posture

Appeal Against Development Application Refusal / Judgment After Hearing

Legal Issues

  1. 1 Whether the proposed three-lot subdivision and construction of three detached dwellings comply with relevant planning controls under the Kiama Local Environmental Plan 2011 and associated policies
  2. 2 Whether the proposal leads to unacceptable impacts relating to bulk, scale, density, view loss, amenity, and streetscape character

Ratio Decidendi

With modifications to remove clerestory elements and redesign balconies as described in deferred commencement conditions 1(a) and 1(b), the proposal achieves the objectives and controls of the Kiama Local Environmental Plan 2011 and Kiama Development Control Plan 2012. The development results in no unacceptable visual, privacy, or amenity impacts, and achieves reasonable view sharing in accordance with established legal principles.

Court Disposition

Appeal upheld, consent granted subject to modifications and further directions.

Orders

  • Applicant to amend architectural drawings as per deferred commencement conditions 1(a) and (b) within 7 days.
  • Council to file revised Conditions of Consent within 2 days after receiving the amended drawings.