Cole v Kiama Municipal Council

Parties: Michael John Cole (Applicant)
Kiama Municipal Council (Respondent)

Representation: Counsel:
T F Robertson SC (Applicant)
C Shaw (Solicitor) (Respondent)
Solicitors:
Messenger Cole Solicitors (Applicant)
Shaw Reynolds (Respondent)

File Number(s): 2024/476974

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application no. 10.2023.201.1 for a boundary adjustment subdivision (DA) of Lot 16 DP 609650 and Lot 73 DP 1010554 at 978 Jamberoo Road, Curramore and 1012 Jamberoo Road, Curramore (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 March 2025. Further written submissions were provided on 11 April 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the Applicant amending DA 10.2023.201.1 in accordance with the document listed below (amended DA):

4. Statement of Environmental Effects prepared by Allen Price & Scarratts Pty Ltd dated 24 February 2025 (SEE).

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal for the DA and granting development consent subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters. 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.

Jurisdictional Prerequisites

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

7. I am satisfied that owners consent accompanied the development application, as provided at Tab 1 of the Class 1 Application.

8. The parties agree that the part of the site that is mapped with biodiversity values under the Biodiversity Conservation Act 2016 is not within the area of the proposed subdivision and the provisions are not triggered.

9. I accept that the parties have considered the provisions of s 4.15(1) of the EPA Act as set out in the jurisdictional statement.

Integrated Development

10. The DA is integrated development pursuant to s 4.46 of the EPA Act and requires a bushfire safety authority from the NSW Rural Fire Service in accordance with s 100B of the Rural Fires Act 1997 (Fires Act).

11. The DA is accompanied by a Bushfire Risk Assessment by Harris Environmental dated 20 November 2023. The relevant authority body, Rural Fire Service (RFS), issued General Terms of Approval (GTA) on 9 February 2024. These have been included in the conditions of consent at Attachment A. I accept that the provisions of the Fires Act have been met.

State Environmental Planning Policy (Primary Production) 2021

12. Chapter 2 of State Environmental Planning Policy (Primary Production) 2021 (SEPP PP) applies as the site relates to primary production and rural development. To the extent that it applies and as set out in the SEE, I accept the parties’ agreement that the approximately 2% decrease of farmland from the proposed development remains consistent with the aims of SEPP PP given the topographical constraints of the land that will reduce in size.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. The parties agree that s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the proposed development. To the extent that is applies and for the abundance of caution, I accept that s 4.6 has been satisfied as set out in the SEE and that the existing uses on site will remain unchanged and there are no physical works.

Kiama Local Environmental Plan 2011

14. The site is zoned part RU2 Rural Landscape, part C2 Environmental Conservation and part C3 Environmental Management. Pursuant to cl 2.3, I have had regard to the objectives of the zones.

15. Subdivision is permitted with consent pursuant to cl 2.7, the proposed subdivision is on parts of the site zoned RU2.

16. The proposed subdivision is sought pursuant to cl 4.2C exceptions to minimum subdivision lot size for boundary adjustments in Zone RU1, Zone RU2 and Zone C3.

17. I note that in making an agreement reached by the parties, the Court only needs to be satisfied that the decision is one that the Court could have made in the proper exercise of its functions. On the basis of the agreed submissions of the parties, including the written submissions of Mr Robertson SC, I accept that the proposed subdivision is a subdivision alteration/adjustment under cl 4.2C.

18. Clause 4.2C allows subdivision notwithstanding the minimum lot sizes under cl 4.1 subject to preconditions. I accept the parties’ agreement that these preconditions are met as set out in the SEE, written submissions and jurisdictional statement:

19. The clause applies to the RU2 zone (cl 4.2C(2)(b)).

20. There will be no increase in lots (cl 4.2C(3)(a)).

21. There will be no increase in the number of dwellings on or able to erected on any of the lots (cl 4.2C(3)(b)).

22. There is no change to the use of land for rural or agricultural purposes as a result of the subdivision (cl 4.2C(3)(c)).

23. The site is mapped as containing acid sulfate soils, terrestrial biodiversity and riparian land. The proposed subdivision does not propose any physical works that would interfere with these qualities.

Conclusion

20. 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.

21. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

22. 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.

Orders

23. The Court orders:

24. The appeal is upheld.

25. The Applicant is to pay the Respondent’s costs as a consequence of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed at $1.00.

26. Development Application 10.2023.201.1 as amended is determined by grant of consent for a boundary adjustment (subdivision) of Lot 16 DP609650 and Lot 73 DP1010554, at 978 Jamberoo Road, Curramore, and 1012 Jamberoo Road, Curramore subject to the conditions contained at Annexure A.

S Porter

Commissioner of the Court

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Annexure A