Land and Environment Court New South Wales Medium Neutral Citation: Forte Kiama Heights Development Pty Ltd v Kiama Municipal Council [2024] NSWLEC 1390 Hearing dates: Conciliation conference on 31 May and 14 June 2024 Date of orders: 10 July 2024 Decision date: 10 July 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent DA 10.2022.113.1 is modified in the terms in Annexure A. (3) Development consent DA 10.2022.113.1 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION: multi dwelling housing development in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Kiama Local Environmental Plan 2011, cll 4.1E, 4.3, 4.6 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11 Cases Cited: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65 Category: Principal judgment Parties: Forte Kiama Heights Development (Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: J Wauchope (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Dentons Australia Pty Ltd (Applicant) Marsdens Law Group (Respondent) File Number(s): 2023/461465 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) seeking to modify development consent DA No. 10.2022.113.1 for demolition of a single dwelling and construction of four terrace houses over four levels with common parking space, swimming pools and landscaping at a site known as 4 and 6 Elanora Road, Kiama Heights (the original consent). 2. In broad terms, Modification Application No. 10.2022.113.3 seeks to modify the roof shape, height, internal layout, balcony projection, pool shape, landscape and driveway of the development the subject of the original consent. 3. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land Environment Court Act 1979 (LEC Act) on 31 May 2024, which commenced with an onsite view after which the conciliation conference, at which I presided, continued at Court. 4. At the conciliation conference, the parties agreed certain amendments that, in the view of the Respondent at the commencement of proceedings, were capable of resolving the matters in contention, subject to the provision of further detail that necessitated the further amending of plans and other documents, and for which I granted an adjournment. 5. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties. To this end, the Respondent agreed to the amending of the application by the Applicant, in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 21 June 2024. 7. The parties ask me to approve their decision as 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. 8. 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 prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [17]. 9. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow. 10. Firstly, as the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons: 1. In general terms, the Modification Application is for substantially the same form and scale as originally approved, other than shape of the uppermost roof, overall height, internal layout, degree of balcony projection, pool shape, landscape and driveway. 2. Quantitatively, there is a no change in the number of levels, units, bedrooms, car parking or setbacks. To the extent there is a change in the gross floor area of the development as is proposed to be modified, it is a reduction. There is an exceedance in the height of the development as a result of the proposed modification, and that change results in an exceedance of the height standard applicable to the site. 3. Qualitatively, the modification application remains substantially the same in respect of characterisation as multi dwelling housing that is within the height plane where it presents to Elanora Street, and in the materials and finishes adopted. 4. Additionally, a Visual Impact Statement and accompanying photomontage analysis identifies the extent of view obstructed from the property at 5 Eleanora Street, which is relevant to the proposed modification to the height and shape of the uppermost roof form that that did not exceed the height standard in the original consent. Notwithstanding compliance by the development the subject of the original consent, some visual impact was proposed, which is the appropriate comparator to the impact now proposed and which the parties agree is acceptable when regard is had to the impact caused by the development the subject of the original consent. 1. The Modification Application was notified by the Respondent between 18 August 2023 and 1 September 2023 in accordance with s 4.55(1A)(c) of the EPA Act. In response to the notification of the application, three submissions were received. I have considered the issues raised in those submissions. 2. Pursuant to s 4.55(3) of the EPA Act, I have considered those issues at s 4.15 of the EPA Act that are of relevance to the proposal, and I note the following: 1. The Site is zoned R2 Low Density Residential under the Kiama Local Environmental Plan 2011 (KLEP), within which multi dwelling housing development is permissible with consent. Clause 4.1E(2) and (6) of the KLEP provides that only form of multi-dwelling housing permitted in the R2 zone are those defined as terraces, as is the case here. The minimum lot size applicable to such development is met. 2. As stated earlier, the development as proposed to be modified exceeds the height standard of 8.5m by a maximum dimension of 450mm. The Court has consistently held that the power to modify a consent that breaches a development standard is a complete source of power, and so cl 4.6 of the KLEP does not apply to modification applications: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31]. Instead, I have considered the Visual Impact Statement and photomontage analysis and I consider the additional height to be reasonable when regard is had to the elevated views from properties on the opposite side of Elanora Street, and from a position below the site, closer to the foreshore. From both vantage points I accept the development as proposed to be modified is in keeping with the desired scale and character of the street and local area, being an objective of cl 4.3 of the KLEP. 3. As the site is located within the Coastal Use Area and Coastal Environment Area, defined by State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP), Part of the Hazards SEPP applies to require the consideration of impacts of an environmental kind (s 2.10), including the visual amenity and scenic qualities of the coast (s 2.11). 4. I note the parties are satisfied, as I am, that the development is sited and will be managed to avoid adverse impact of a kind considered at s 2.10(1) of the Hazards SEPP, and that, on the basis of the Visual Impact Statement and photomontage analysis, the development is designed to avoid those adverse impacts listed in s 2.11(1) of the Hazards SEPP. 5. Finally, I note that as the original consent was granted by the Respondent, the reasons for the grant of the original consent are limited to the conditions of consent, which I have considered. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 that: 1. The Respondent, Kiama Municipal Council, as the relevant consent authority, has approved the amendment of Modification Application DA 10.2022.113.3 pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), to rely on: 1. The following amended architectural plans and documents listed in Annexure C to this decision: Plan title Dated Plan reference Prepared by Roof Plan 17-06-2024 A100 -K LYMT Street Level 17-06-2024 A101-J LYMT Elevations 1 (east and west) 17-06-2024 A200-I LYMT Elevations 2 (north and south) 17-06-2024 A201-I LYMT Sections 17-06-2024 A300-I LYMT 1. Visual Impact Assessment prepared by Steven Layman dated 6 June 2024 (Issue B). 2. Photomontage Report prepared by David Murgatroyd dated 21 May 2024 (Issue A). Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent DA 10.2022.113.1 is modified in the terms in Annexure A. 3. Development consent DA 10.2022.113.1 as modified by the Court is 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: 10 July 2024