Ellison v Kiama Municipal Council

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46; CASES CITED: Hooker Corporation v Hornsby Shire Council, Cripps J, 2 June 1986; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

APPLICANT: Mr John Maston, Barrister

LEGAL REPRESENTATIVES: RESPONDENT: Mr P Moggach, solicitor of Russell McClelland Brown, Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10644 of 2007 Lindsay James Ellison v The Council of the Municipality of Kiama

JUDGMENT 1 This is an extempore judgment for an appeal under s 97 of Environmental Planning and Assessment Act 1979 (the Act) against Kiama Municipal Council's imposition of a condition on the development consent to delete the third storey element.

2 The development application is for a swimming pool located at the rear of the subject site at 82 North Kiama Drive and for the enclosure of the downstairs area with some excavation to provide an additional living space, recreation room and a bathroom for the proposed dwelling. The subject dwelling is some 200 square metres the addition is some 45 square metres thereabouts and the proposed development will in effect provide for a third level of living.

3 The council contends in these proceedings that the standard contained in clause 50 of the Kiama Local Environmental Plan 1996 (the LEP) would be contravened in that the proposed alterations and additions would add an additional storey to the subject development. The council states as a matter of policy the two storey standard contained in clause 50 of the LEP should be complied with. Council does not contend that: there would be any environmental harm; or there would be any environment impact; or indeed the proposed third level would be visible from the foreshore area. There is no objection to that part of the development application for the construction of the swimming. 4 A general description of the area is that the subject property has a rear boundary that adjoins the reserve of Jones Beach at Kiama and the front boundary which is the street boundary. The area can be described as generally residential development in the late previous century although there is redevelopment in terms of some newer dwellings being erected either as alterations and additions or on the vacant lots of land.

5 The proposed development can be described as a modest development in terms of the additional floor area created. It is noted in the council officers report that all the other standards are complied with in council's local planning regime. That is the 0.5:1 floor space ratio, the proposal is some 0.43:1. The contravention is in terms of the storeys control in the LEP. The aims and objectives of the LEP include: o To preserve and enhance the special qualities of the council area. o To meet general community expectations. o To provide minimum degradation of flora and fauna. o A built form that compliments the landscape. o A landscape design that is appropriate to the area and makes a more attractive residential environment and 6 The objectives of the zone include: o To enable orderly and economic development of land for residential purposes. o To reduce the consumption of land for residential purposes. o To reduce housing costs… o To encourage innovation, diversification and energy efficiency…in building designs, o To prevent development occurring on land subject to flooding, slip or coastal erosions although that is not an issue in these proceedings even though its beach front land. o To protect urban bushland and o To protect significant landscapes. 7 Clause 50 of the LEP on 'Height Restrictions for Buildings' states: "except as provider for this clause a person shall not erect a building containing more than two storeys". (There are some exceptions in terms of non-residential areas.)

8 It is agreed between the parties that the storeys limitation is in fact a development standard and consistent with Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 where his Honour Lloyd J outlined a number of questions that must be answered for the assessment of a SEPP 1 Objection. The parties agree on the objectives or the underlying objectives, (as they are not overtly stated) as being: to control the bulk and scale and height of buildings and the visual appearance in the built environment.

9 Storey is defined in the LEP as: "the space in a building and the floor in the building and the floor next above or whether there is no floor above the ceiling or roof above".

10 Council does not contend that the proposed development would have environmental impacts and indeed it could be seen from the site inspection this morning that it would be difficult to see the third level if at all from the beach front reserve area. 11 The limitation in terms of bulk, scale and height utilization of the sub floor area for a third storey in the circumstances in this case will not impact in terms of bulk, scale and height and as I stated there is no adverse visual appearance.

12 In terms of the SEPP 1 Objection I must have regard to the aims and objectives of the policy itself and that allows for flexibility in the implementation of standards where strict adherence would be unnecessary. In the circumstances of this case, that utilizes the undercroft area of the existing dwelling, having regard to the adjoining development within the area and having regard to development within the area and having regard to the visual impact, or rather the lack of any impact on surrounding properties, I am satisfied that the proposed third level will not be out of character or an aberration in the area. More importantly, for an assessment under SEPP 1, the proposal satisfies the aims and objectives of the Policy and the underlying purpose/ objective of the development standard of two storeys. 13 Furthermore it satisfies the objects of the Act in terms of orderly and economic development and the objection in my opinion is well founded. Therefore I see no reason as to why the SEPP 1 objection should not be allowed in the circumstances of this case.

14 A corollary of the SEPP 1 Objection in terms of public policy, council contends that the standard should be adhered to because council has consistently implemented the two storey limitation.

15 By way of comment I note that the Kiama LEP does not contain objectives for the standard and indeed it is silent on height restrictions of buildings and voids are not considered in terms of overall height /storeys but rather floor to ceiling is a storey. As such storey is a rather crude control in isolation.

16 The council's objective of retaining a residential environment that does not present as large bulky buildings out of scale with the residential area is satisfied by the proposed development. It would be more informative if the LEP or the DCP contained further provisions such as height restrictions and this with other controls such as the FSR (that is complied with in this instance) together with a storeys limitation, an FSR, a floor to ceiling height, and an overall height could work hand in hand to ensure that buildings are not excessive in terms of bulk, scale and height.

17 The site inspection this morning has been most instructive as could be seen from the various examples that the Court was taken to the storeys limitation in itself demonstrates that there are a number of dwelling houses that present as bulky dwellings but yet still technically comply with councils two storeys control but the perception when viewed from public places, that is the beach front area, a number of dwellings certainly read as far more than two storeys. 18 In terms of Council's issue on public policy strict compliance in itself should not be the objective. The objective should be the nature and the outcome in terms of what the controls produce and as such strict adherence of the standard eliminates the flexibility provided for in SEPP 1. SEPP 1 has a specific purpose and that is to provide for the flexibility in its implementation where circumstances warrant same and the objectives of the underlying purpose of the standard are satisfied. In this instance the underlying objectives are clearly satisfied. It is true that from a previous decision of the Court in Hooker Corporation Limited v Hornsby Council , a judgment of Cripps CJ (June 1986) it was found "it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection" (under 1 objection SEPP 1). Nonetheless I am satisfied in this case that the SEPP 1 objection is well founded and demonstrates that the underlying objectives are met by the proposed development. 19 For the issue raised of precedent. This is a relevant matter for the Court to consider and I refer to the case of Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, wherein Lloyd J considered that precedent in itself was a reason for refusal where other land holders could in fact expect to invoke the same provisions. In the Goldin case this is about jetties along a foreshore and the precedential effect in terms of cumulative impact of a number of such approvals was regarded as a reason to warrant refusal. In the circumstances of this case the proposal in my assessment is not an undesirable precedent and indeed on the individual merits the proposed development is worthy of approval.

20 Accordingly, on the basis of my assessment here today the formal Orders of the Court are: 1. The appeal in respect of the property known as 82 North Kiama Drive, Kiama is upheld. 2. The State Environmental Planning Policy No. 1 in respect of clause 50 of the Kiama Local Environmental Plan 1996 to vary the two storey height limitation is allowed. 3. The development application for an additional level of living under the house and a swimming pool is approved subject to the conditions contained in Annexure 'A'. 4. The exhibits are returned to the parties with the exception of: the plans Exhibit C; the SEPP 1 Objection, Exhibit B; and the without prejudice conditions, Exhibit 7.

      J S Murrell
      Commissioner of the Court
      ljr

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