Grant v Kiama Council

Grant v Kiama Council - [2005] NSWLEC 58 - NSWLEC 2004 case summary — Zoe

[14]

6 In essence, the two Class 1 proceedings: - seek to regularize the existing structures or other elements (however technically characterised) - whether by additional work to render them capable of being given a building certificate or otherwise; - seek approval for the use of each of them for the purpose designed; - seek a consent to add other attractions such as a giant chess board and donkey rides; - seek a consent to construct a proper access to the facility from the Princes Highway; and - seek a consent to carry out landscaping and construct effluent treatment works. 7 The total outcome which would result from the present process, if all elements were approved in some fashion, would be the ability for the applicant to operate a tourist facility encompassing all these various activities. 8 Such approval would also necessitate the construction of road works on the Princes Highway to provide a safe entrance to the proposed facility. The design of such entrance treatment is agreed by the applicant, the council and the Roads and Traffic Authority (the RTA). However, as part of the merit assessment of the overall application, the council raises the issue of the removal of what it considers to be a significant tree in the road reserve adjacent to the proposed reconstructed entrance. Planning controls 9 The relevant planning instruments are the Illawarra Regional Environmental Plan No 1 (the REP) and the Kiama Local Environment Plan 1996 (the LEP). 10 Cl 122 Recreation and Tourism of the REP reads: Development of recreation and tourism facilities which can be demonstrated will result in a net inflow of money to the region and which will be environmentally acceptable should be encouraged. 11 The general objectives of the LEP are contained in cl 4. The relevant general objectives for this appeal are contained in cl 4(2) and are: (j) To ensure that new developments are well designed and complement the character of the surrounding land and the Council's area, and (s) To ensure the preservation of the landscape and special scenic qualities of the Council's area,

[19]

Landscaping 17 Mr Moggach, solicitor for the council, submitted to me that, with respect to the landscaping, I could not be satisfied that the applicant would appropriately maintain the landscaping or that the landscaping would establish itself, sufficiently, under an appropriate maintenance region, to ensure that the screening required was, in fact, achieved over time. 18 He submitted to me that a logical extension of the planning principles set out by Roseth SC in Super Studio v Waverley Council [2004] NSWLEC 91 is that landscaping cannot be relied upon for more general propositions of guarding against overlooking when the overlooking sought to be ameliorated is of an aesthetic rather than a residential privacy nature. 19 I reject this proposition. 20 It is clear from Roseth SC's decision that landscaping for the protection of residential privacy and amenity in closely settled areas is what was being dealt with in that case. 21 The present instance, I am dealing with a rural landscape where no issues of immediate residential privacy are involved, but, however, broader matters of landscaping aesthetics are involved. There is no logical link between the two and Super Studio does not provide an analogy to extend the narrow principle there espoused to the breadth contended for by Mr Moggach. 22 It is long settled that the Court is obliged to assume that an applicant who is granted a consent will abide by conditions attaching to that consent. 23 In the present instance, it is conceded by the council that the landscaping is adequate if it is effectively maintained. Whilst the council quite legitimately points to the difficulties that would be occasioned in maintaining the landscaping, nonetheless the applicant is entitled to the presumption that he will, in fact, maintain that landscaping as required. Economic viability 24 With respect to the question of economic viability of the enterprise, the applicant gave evidence that it was his intention to reside at the property and to conduct the proposed tourism enterprise as an owner/operator with the activity being undertaken with the assistance of members of his family. If the enterprise were as successful as he hoped, he envisaged that he might hire additional non-family assistance at some time in the future. 25 He indicated that he proposed to use income from property investments in Sydney to support him during the establishment phases of a proposed enterprise.

[56]

Conclusion 79 As a consequence of what is set out above, I have concluded that the appeals should be upheld to the effect that the applicant should be permitted to operate the facility he seeks to establish at the site but that this operation should not commence until a residence has been constructed taking advantage of the consent for a building footprint separately granted by the council. The consent should be constrained by the requirement that it is only valid whilst the operator of the facility resides in this dwelling. 80 My conclusion is set out in these terms as the way the proceedings have been commenced and have subsequently unfolded has not left me with a clearly defined path to the final orders necessary to give effect to my conclusions 81 As a consequence, formal orders and associated conditions will need to be settled by the parties to give effect to the findings I have made (reflecting the position agreed to by the parties) concerning the individual elements of the proposal and the additional or remedial works required for a number of the structures or other elements (however technically characterised) which are presently at the site. 82 Formal development consent conditions will also be required to be settled for the other entirely new works being the landscaping, effluent disposal and entrance works to the Princes Highway. Costs 83 As both parties indicated that they wished to address me on costs and there was not time for them to do so during the substantive hearing, the process set out below will permit that to be dealt with (if required by either party after consideration of this decision). Finalisation of the proceedings 84 In light of my conclusions and the indication by the parties that each might wish to be heard on costs, I give the following directions: 1. The parties are to settle the form of the orders and conditions in each of the Class 1 proceedings as necessary to give effect to this decision; 2. The matter is set down for callover before the Registrar on 10 August 2005; 3. Liberty to restore before me at 9am on two days notice for the arguing of costs or settlement of orders and conditions (if the parties are not able to agree on these); and 4. If the parties are able to agree: * on orders and conditions and these are filed electronically in conformity with Practice Direction 2 of 2005; and * that they do not require a hearing on costs, I will issue orders in Chambers and vacate the callover before the Registrar.

At a glance

Court

Decision date

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Judgment (58 paragraphs)

Parties

Cases Cited (2)

Cited By (3)