Matthew Strange and Stephen Strange v Kiama Municipal Council [2003] NSWLEC 287

> Land and Environment Court of New South Wales

CITATION : Matthew Strange and Stephen Strange v Kiama Municipal Council [2003] NSWLEC 287 APPLICANT: Matthew Strange and Stephen Strange PARTIES : RESPONDENT: Kiama Municipal Council FILE NUMBER(S) : 10228 of 2002 CORAM: Hussey C Development Application :- Alterations/extensions KEY ISSUES: Foreshore building line (SEPP 1 objection) Public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Kiama Municipal Council LEP CASES CITED: DATES OF HEARING: 26 September 2003 DATE OF JUDGMENT: 11/18/2003

APPLICANT: Mr J Robson SOLICITORS: Peedoms

LEGAL REPRESENTATIVES: RESPONDENT: Mr I Hemmings SOLICITORS: Kearns & Garside

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10228 of 2002

Hussey C

18 November 2003 Matthew Strange and Stephen Strange Applicant v Kiama Municipal Council Respondent Judgment Background 1 This matter initially came to the Court by way of an appeal against council's refusal of the development application for alterations and extensions to an existing waterfront house at 152 Charles Street, Minnamurra. 2 The alterations to the existing house involve the conversion of the lower floor garage area, reconfiguration of the first floor level, re-roofing the building and provision of additional glazing to the eastern and southern elevations. The overall proposal also includes the construction of a new two-storey building at the south western end of the land. The existing dwelling house has a gross floor area (inclusive of garaging) of 186.5 m2 and the proposed alterations and additions will increase the gross floor area to 444.8 m2. 3 The main issues concerned compliance with the Foreshore Building Line (FBL), storm/beach erosion risks, visual impact and public interest considerations. 4 Following orders to grant development consent on 24 January 2003, this decision was appealed and her Honour Justice Pain subsequently decided to remit the matter for further hearing. For this further hearing, the outstanding issues involve: + non-compliance with council's policies concerning the erection, alteration, extension or rebuilding of buildings along the Minnamurra River. In this regard, determination of a SEPP 1 objection to the FBL standard is required: + inconsistency with the NSW Coastal Policy. + impact on adjoining property. The evidence 5 Further evidence for the council was presented by Mr G. Debnam, senior town planner with Kiama Council. The applicant's consulting town planner Ms L Bull also presented a further report, incorporating an updated SEPP 1 objection to the F. B. L. development standard. 6 In accordance with Justice Pain's finding, this proposal involves the erection of the building forward of the foreshore building line. This foreshore building line was formerly set by way of the Minnamurra Foreshore Building Line Policy. 7 Subsequently on 16th September 2003, council adopted the Kiama DCP No 36 - Building Lines and Foreshore Building Lines, which is effective from 24 September 2003. With regard to the submissions concerning the weight to be given to this DCP 36, I note that the F. B. L. controls are practically the same as those contained in the Minnamurra Foreshore Building Line Policy 36 and that is an aspect previously considered. However with the adoption of these controls in the DCP, I now consider they should be given elevated weight, so that the development should demonstrate reasonable compliance with the intent of the controls. 8 This DCP is specifically related to Kiama L.E.P., which in turn adopts cl. 7 of the Environmental Assessment Model Provisions 1980. Accordingly it contains the following aims: