Colys Investments Pty Ltd v Kiama Council [2008] NSWLEC 1493

Land and Environment Court of New South Wales

CITATION : Colys Investments Pty Ltd v Kiama Council [2008] NSWLEC 1493

APPLICANT Colys Investment Pty Limited PARTIES : RESPONDENT Kiama Council

FILE NUMBER(S) : 10367 of 2008 and 10368 of 2008

CORAM: Tuor C

Development Application :- Use second floor for accommodation permissibility of use KEY ISSUES: SEPP 1 objection to floor space ratio and height impact on heritage significance of the item public access and access for people with a disability

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Kiama Local Environmental Plan 1996 State Environmental Planning Policy No 1

DATES OF HEARING: 23/10/2008, 24/10/2008 and 02/12/2008

DATE OF JUDGMENT: 19 December 2008

APPLICANT Mr J. Doyle, barrister SOLICITORS Willis & Bowring LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Moggach, solicitor of RMB Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

19 December 2008

10367 of 2008 and 10368 of 2008

Colys Investments Pty Ltd v Kiama Municipal Council

JUDGMENT 1 COMMISSIONER: Appeal No 10368 of 2008 is against the refusal by Kiama Municipal Council (the council) of a development application (DA10.2007.171.1) under the Environmental Planning and Assessment Act 1979 (the Act) to use the second storey of the former Kiama Infants School Building (former school building) for accommodation at lots 7 and 8, DP 1085635, 2 Minnamurra Street, Kiama (the site). 2 Appeal No 10367 of 2008 is against council's deemed refusal of a building certificate application under s149F of the Act. The building certificate is for works carried out without consent on the second storey of the former school building to provide three accommodation suites, including a mezzanine level. 3 The issues raised by Kiama Municipal Council principally relate to whether the use of the second storey is permissible and whether it would have an acceptable impact on the heritage significance of the building. Council also contends that the use does not provide public access and access for the disabled, which meets the requirements of the Building Code of Australia (BCA). 4 The parties initially agreed that the applications should be considered together and that approval of the building certificate is required prior to approval of the development application for the use. However, as a result of amended plans the parties agreed that a building certificate may no longer be required and that Appeal No 10367 of 2008 could be dismissed. The site and background 5 Lots 7 and 8, DP 1085635 are part of the Kiama Blue Tourist facility (the tourist facility) located on the corner of Minnamurra and Shoalhaven Streets. The lots contain the former school building and common areas for the tourist complex. The former school building comprises three main rooms being the east two storey building (Kemp Building), the central single storey building (Room 2) and the western single storey building (room 3). Lot 8 includes the second storey and stairwell of the Kemp Building. The ground floor the former school building is all within lot 7. 6 The former school building was originally part of Lots 1 and 2 DP 869013. Council approved a stratum subdivision into eight lots on 9 March 2005. These lots include: o lot 2 DP 1085635, the hotel suite building in the west part of the tourist facility o Lot 4 DP 1085635, the bar and restaurant building in the north east part of the tourist facility o Lot 6 DP 1085635, the serviced apartment building in the east part of the tourist facility. 7 These lots have been further strata subdivided.