Land and Environment Court New South Wales Medium Neutral Citation: Kez Developments Pty Ltd v Kiama Municipal Council [2023] NSWLEC 1414 Hearing dates: Conciliation conference on 28 July 2023 Date of orders: 01 August 2023 Decision date: 01 August 2023 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (2) The appeal is upheld. (3) Development Application 10.2022.12.1 seeking consent for the construction of multi dwelling housing comprising 3 attached dwellings with basement carparking, ancillary works and strata title subdivision at 59 Belinda Street, Gerringong NSW 2534 is determined by granting development consent subject to the conditions set out in Annexure B. Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing development in R3 Medium Density Residential zone – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Kiama Local Environmental Plan 2011, cll 4.1F, 4.3, 4.4, 6.1, 6.2 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Environmental Planning and Assessment Regulation 2000, cl 55 Category: Principal judgment Parties: Kez Developments Pty Ltd (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: J Smith (Applicant) D Gunter (Solicitor) (Respondent) Solicitors: Whiteacre Legal (Applicant) Sparke Helmore (Respondent) File Number(s): 2022/291859 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Kiama Municipal Council of development application No 10.2022.12.1 seeking consent for multi dwelling housing comprising three attached two-storey dwellings, basement carparking, driveway, earthworks and landscaping at Lot 1 in DP 544665, otherwise known as 59 Belinda Street, Gerringong. 2. On 24 July 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 18 July 2023, in accordance with s 34(10) of the LEC Act. 4. The parties asked me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 6. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 7. The site is located within the R3 Medium Density Residential zone according to the Kiama Local Environmental Plan 2011 (KLEP) in which multi dwelling housing development is permitted with consent where consistent with the following objectives for development in the R3 zone: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide opportunities for multi-storey residential accommodation in locations close to shops, transport nodes, commercial services, public open space and employment opportunities. • To provide increased housing choice particularly housing suited to older people and people with a disability. • To increase the supply of affordable housing. 1. The development application is accompanied by a survey plan, Drawing 21544/1, prepared by C Robson & Associates dated 14 April 2022 showing a site area of 1,393m2 which is an area greater than the minimum site area for multi dwelling housing in the R3 zone pursuant to s 4.1F of the KLEP. 2. According to cl 4.3 of the KLEP, a height of building standard of 11m applies to the site, and a Floor Space Ratio of 1:1 applies to the site pursuant to cl 4.4 of the KLEP. The proposed development complies with both standards. 3. On the basis of the Acid Sulfate Soils map at Section 3.4.3 of the Phase 1 – Preliminary Environmental Site Assessment prepared by Integral Environmental Solutions dated 11 July 2022, I accept that the site is not located within an area identified with acid sulfate soils and so cl 6.1 of the KLEP is not engaged. 4. The development application, as amended, is also accompanied by a Geotechnical Investigation Report (Geotechnical Report) prepared by Australia Ground Sciences, dated 13 February 2023. On the basis of the results of fieldwork referred to in the Geotechnical Report, and the recommendations contained therein, and the proposed stormwater drainage system documented in the civil engineering plans prepared by ROC Engineering Design dated 28 April 2023, I am satisfied of those matters at cl 6.2(3) of the KLEP in respect of earthworks. 5. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires consideration of a report specifying the findings of a preliminary investigation of the land where a change of use is proposed. On the basis of the conclusions of the Phase 1 – Preliminary Environmental Site Assessment, prepared by Integral Environmental Solutions dated 11 July 2022, I accept the site is suitable for the purpose proposed by the development. 6. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1269758M, dated 21 December 2021) prepared by Paul & C Associates and dated within 3 months of the development application being lodged in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Conclusion 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 3. The Court notes the Applicant amended the development application No 10.2022.12.1 with the agreement of the Kiama Municipal Council, as the relevant consent authority, pursuant to cl 55 of the EPA Regulation, to rely on the amended plans and documents set out at Annexure A. 4. The Applicant filed the amended plans and documents at Annexure A with the Court on 18 July 2023, but for the following documents filed with the Court on 28 July 2023: 1. Phase 1 – Preliminary Environmental Site Assessment prepared by Integral Environmental Solutions dated 11 July 2022. 2. Updated Driveway Design Assessment, dated 28 April 2023 3. Statement of Environmental Effects re Overshadowing dated 13 April 2023. Orders 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The appeal is upheld. 3. Development Application 10.2022.12.1 seeking consent for the construction of multi dwelling housing comprising 3 attached dwellings with basement carparking, ancillary works and strata title subdivision at 59 Belinda Street, Gerringong NSW 2534 is determined by granting development consent subject to the conditions set out in Annexure B. T Horton Commissioner of the Court ********** Annexure A Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2023