Anacapri Holdings Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1006

Land and Environment Court New South Wales

Medium Neutral Citation: Anacapri Holdings Pty Ltd v Kempsey Shire Council [2012] NSWLEC 1006 Hearing dates: 16 January 2012 Decision date: 19 January 2012 Jurisdiction: Class 1 Before: Brown ASC Decision: 1. The appeal is dismissed. 2. The amendment to part condition 22 of the approval by Kempsey Shire Council of Development Application T6-11-95 for a 2-lot subdivision at 36-38 Pacific Street, Crescent Head is refused. 3. The exhibits are returned. Catchwords: MODIFICATION - condition of development consent for subdivision specifying minimum floor height of future development Legislation Cited: Environmental Planning and Assessment Act 1979 Kempsey Local Environmental Plan 1987 Land and Environment Court Act 1979 Cases Cited: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Category: Principal judgment Parties: Anacapri Holdings Pty Ltd (Applicant)

Kempsey Shire Council (Respondent) Representation: Counsel Mr R Dennis, agent (Applicant)

Mr G Underwood, barrister (Respondent) Solicitors Self represented (Applicant)

Cooney Harvey Doney Lawyers (Respondent) File Number(s): 11038 of 2011

Judgment 1ACTING SENIOR COMMISSIONER: This is an appeal against a condition imposed by Kempsey Shire Council on the approval of Development Application T6-11-95 for a 2-lot subdivision that created Lots 121 and 122 at 36-38 Pacific Street, Crescent Head (the site). 2The appeal was subject of a conciliation conference on 16 January 2012 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). The conciliation conference and hearing were conducted at the council chambers and an inspection of the site was undertaken with representatives of the parties. 3The condition in dispute was condition 22 and specifically that part of the condition that relates to a restriction on the habitable floor level of future buildings, where it states: A restriction which requires the habitable floor level of any buildings on proposed Lots 121 and 122 to be at or above the flood planning level for the site, as required by the version of Kempsey Shire Councils Flood Risk Management Policy at the time an application for development is lodged. 4The applicant was granted leave to amend the application at the hearing and proposed the following alternate part condition 22: A restriction which requires the habitable floor level of any buildings on proposed Lots 121 and 122 to be at or above the flood planning level of RL 4.20 AHD, including the council's sea change level of 0.46 m, or a higher level if specified by any review of Kempsey Shire Councils Flood Risk Management Policy or similar document, at the time an application for development is lodged.