Smithers v Kiama Municipal Council [2021] NSWLEC 1348

Land and Environment Court New South Wales

Medium Neutral Citation: Smithers v Kiama Municipal Council [2021] NSWLEC 1348 Hearing dates: 15-16 March 2021 Date of orders: 15 June 2021 Decision date: 15 June 2021 Jurisdiction: Class 1 Before: Washington AC Decision: See directions at [73] below Catchwords: DEVELOPMENT APPLICATION – Torrens Title subdivision – construction of three detached dwellings – view loss Legislation Cited: Kiama Local Environmental Plan 2011 cll 4.1, 4.3, 4.4, 6.1 & 6.2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land Cases Cited: Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSW LEC 140 Texts Cited: Kiama Development Control Plan 2012 Category: Principal judgment Parties: Nicole Smithers (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: M Mantei (Solicitor) (Applicant) J Fan (Solicitor) (Respondent)

Solicitors: Michael Mantei Planning Law Solutions (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/400831 Publication restriction: No

Judgment

Introduction 1. COMMISSIONER: This is an appeal against the actual refusal by Kiama Municipal Council of a development application number 10.2018.196.1 for the demolition of existing dwelling house & outbuildings and four (4) lot subdivision & construction of four (4) new dwelling houses (Development Application) at 5 Pacific Street, Kiama, Lot 21 DP 1218589. 2. Prior to this hearing, leave was granted by the court on 4 December 2020 to amend the application to a subdivision of three lots and the construction of three dwellings, each with two storeys and a double garage. This amendment, documented in the revision K architectural drawings, results from: the deletion of Lot D; a general reduction in height of finished floor levels and clerestory elements, and; the removal of parapets from the original application. 3. The subsequent proposed development before the Court is for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision. 4. The resulting lot sizes and respective gross floor areas as proposed are: * Lot A has a site area of 440.61m2, with a proposed three bedroom dwelling and a gross floor area of 163.66m2. * Lot B has a site area of 355.02m2, with a proposed three bedroom dwelling and a gross floor area of 163.49m2. * Lot C has a site are of 538.85m2, with a proposed four bedroom dwelling having a gross floor area of 184.54m2.