Is the contravention of the development standard for Minimum Lot Size for Erection of a Dwelling House justified by a written request pursuant to cl 4.6 of the KLEP?
- The Site has an area of 1.195 Hectares. Pursuant to cl 4.2A(3)(a) of the KLEP, development consent must not be granted for the erection of a dwelling house unless the area of the land is at least 40 Hectares.
- The wording of cl 4.2A(3) of the KLEP uses the language "Development consent must not be granted…". Whereas for example, cl 4.1(3) states "The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown…". The parties acknowledge that the language used in cl 4.2A(3) is more prohibitory in nature than cl 4.1(3).
- The parties refer to the recent decision of Preston CJ in Canterbury Bankstown Council v Dib [2022] NSWLEC 79. In that case, Preston CJ determined that cl 30AA of the now repealed State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) was a development standard. Cl 30AA was in the following terms,
A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.
- The parties note that cl 30AA was in similar prohibitory terms to cl 4.2A(3) of the KLEP. At [67], Preston CJ stated:
"Development standards can be drafted in different ways. A provision may be drafted with language that appears regulatory or prohibitory, but the substance, however drafted, may be the same. As Giles JA observed in Strathfield Municipal Council v Poynting at [93]: "Care must be taken lest form govern rather than substance."
- Adopting His Honour's reasoning, the prohibitory language used does prevent cl 4.2A(3) of the KLEP from being a development standard. The parties are of the view that cl 4.2A(3) of the KLEP is a development standard which falls within the definition contained in s 1.4(1)(a) of the EPA Act and the parties note that cl 4.2A falls within "Part 4 Principal Development Standards" in the KLEP.
- The parties also note that cl 4.2A is not identified in cl 4.6(8) of the KLEP.
- I conclude that cl 4.2A of the KLEP is a development standard, and adopt the reasons given by the parties.
- Clause 4.6 of the KLEP provides for exceptions to development standards, including cl 4.2A. An amended cl 4.6 written request, prepared by Chapman Planning Pty Ltd and dated 3 July 2022 and filed 6 July 2022, is relied on by the Applicant.
- I have read the cl 4.6 written request which is submitted to address the contravention of the 40 Hectare minimum lot size development standard specified within cl 4.2A(3)(a) of the KLEP. A history of the Site is included which I reproduce below:
"Beachlands House was constructed in the 1890s on a lot having an area of 28.7ha.
In 1929, the land was the subject of a boundary adjustment with the adjoining lot which increased its size to 37.85ha.
The minimum lot size under the provisions of Kiama LEP No.5 (which came into force on 21 August 1981 was 40ha. It is noted that the dwelling house was in existence at this time and so was deemed to have a development consent. It was also already on an undersized lot at this time.
In 1986 subdivision was undertaken, by the then owners of the land Kiama Municipal Council, to create the land for the adjoining Gerringong Golf Course (lot 4) having an area of 32.7ha with the residue Lot 1 being a 2Ha parcel of land that contained Beachlands house and another two residue lots having a combined area of 2.8ha. The subdivision was permitted under the provisions of Kiama LEP No. 5 that allowed subdivision less than the minimum of 40ha for any purpose other than agriculture, forestry or a dwelling house.
In 2001, a boundary adjustment was carried out between Lots 1 and 4 DP730771 to increase the size of the Gerringong Golf Club and subsequently reduce the size of the land in which Beachlands house was located. The subdivision created 2 parcels being: - Lot 201 being 1.95Ha containing Beachlands dwelling house, and - Lot 202 being a 33.5Ha parcel of the land for the Gerringong Golf Club.
The Beachlands dwelling was destroyed by fire in 2002.
Kiama LEP 1996 - Amended 42 Schedule 4 Development for certain additional purposes: - Lot 201, DP1022563 Crooked River Road, Gerroa, as shown edged heavy black on the map marked "Kiama Local Environmental Plan 1996 (Amendment No 42)" - low impact and low scale tourist facility comprising buildings no higher than two storeys.
Development consent No. 10.2016.343.21 was issued on 8 June 2017 for a dwelling house. This consent is active until June 2024."
- I find that the Applicant is not able to rely on this history for the purposes of the exception provided at cl 4.2A(5)(a) of the KLEP. The history provides some assistance to the extent that the objectives of the development standard and the objectives of the zone are achieved as set out in the cl 4.6 written request.
- The Council considers, and the Court is satisfied, that the cl 4.6 written request relating to the development application as amended seeking to justify the contravention of the development standard is well founded and that:
1. the Applicant's written request has adequately addressed the following matters required to be demonstrated by clause 4.6(3):
2. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the standard are achieved notwithstanding the non-compliance (at pages 4-5 of the cl. 4.6 written request), and
3. that there are sufficient environmental planning grounds to justify the contravention of the development standard (at page 5-6 of the cl. 4.6 written request); and
4. the proposed development will be in the public interest because it is consistent with the objectives of cl 4.2A of the KLEP and the objectives for development in the C3 zone (at page 7-8 of the cl. 4.6 written request).
- 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. I adopt the reasons given by the parties.
- 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.