Jordan v Kiama Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.16, 8.7
Land and Environment Court Act 1979 (NSW), ss 34AA, 34
Environmental Planning and Assessment Regulation 2021 (NSW), s 38
Kiama Local Environmental Plan 2011, cll 2.6, 4.1, 4.1D, 4.1E, 4.3, 4.4, 4.6, 6.1, 6.12
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022

Category: Principal judgment

Parties: John Patrick Jordan (First Applicant)
Mary Toni Condello (Second Applicant)
Kiama Municipal Council (Respondent)

Representation: Counsel:
A Knox (Solicitor) (Applicant)
S Nevin (Solicitor) (Respondent)
Solicitors:
Pikes and Verekers Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2025/338572

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 (NSW) (EPA Act) being an appeal against the refusal of Development Application No. 10.2025.103.1 seeking consent for the demolition of existing 2-storey brick veneer dwelling, new 2-storey detached dual occupancy and Torrens title subdivision (Proposed Development) at 6 Merindah Avenue, Kiama Downs legally described as Lot 937 DP236615 (the Site).

2. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which has been held on 9 February 2026. I presided over the conciliation conference.

3. 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 and granting development consent to the development application subject to conditions.

4. 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. 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.

5. The parties’ experts agree that all Contentions raised in the Statement of Facts and Contentions filed on 7 October 2025 (SOFAC) have been resolved by the preparation of the:

6. amended plans and document; and

7. agreed conditions of consent.

8. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

9. 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 to be the terms of cl 4.6 of the Kiama Local Environmental Plan 2011 (KLEP) to justify the contravention of a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement provided to the court.

10. The owners of the site are John Patrick Jordan and Mary Toni Condello as joint tenants, being the First and Second Applicants in these proceedings (the Applicants).

11. The Proposed Development was notified from 23 July 2025 to 6 August 2025. No submissions were received by the Respondent.

12. The site is zoned R2 Low Density Residential under the KLEP in accordance with the Fig 1 extracted from the SOFAC below. Development for the purposes of dual occupancy is permitted with consent in the R2 zone, pursuant to the Land Use Table of the KLEP. Further, subdivision is permissible with development consent, pursuant to cl 2.6 of the KLEP.

13. The mapped minimum lot size development standard for the Site is 450m2: cl 4.1, KLEP. However, an exception to the minimum lot size of 450m2 applies where a single development application is lodged which includes both:

14. the subdivision of land into no more than 2 lots with each resulting lot equal to or greater than 50% of the minimum size shown on the Lot Size Map in relation to the land; and

15. the erection of either a semi-detached dwelling or dwelling house on each lot resulting from the subdivision: cl 4.1D, KLEP.

16. Each proposed new lot following the Torrens title subdivision is 281.4m2 and thus is eligible for the minimum lot size exception under cl 4.1D of the KLEP.

17. Clause 4.1E of the KLEP provides a minimum site area development standard per dwelling of 300m2 for dual occupancy and multi dwelling housing in the R2 zone. The total site area of the property by DP is 562.8m2 and proposed lot size of 281.4m2 is proposed by the Torrens title subdivision, representing a variation to the minimum site area development standard by 18.6m2 or 6.2%.

18. Clause 4.6 of the KLEP permits the contravention of an applicable development standard. In order to grant consent for development which contravenes a development standard, clause 4.6(3) requires the Court to be satisfied that the applicant has demonstrated:

19. that compliance with the development standard is unreasonable or unnecessary in the circumstances; and

20. that there are sufficient environmental planning grounds to justify the contravention of the development standard.

21. The Applicants rely on a written request pursuant to cl 4.6 of the KLEP to justify the contravention of the minimum site area for dual occupancies development standard, prepared by Chapman Planning Pty Ltd dated 13 January 2026 (Written Request):

(a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area; (b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties; (c) to ensure that lot sizes and shapes are able to accommodate development consistent with relevant development controls; and (d) to restrict the fragmentation of land for rural residential purposes.

16. Compliance with the development standard is considered unnecessary because the proposed site area for the dual occupancy development achieves the inferred objectives of the site area standard notwithstanding the minor contravention to the standard. Clause 4.1E of the KLEP does not include objectives, however, as the development application includes Torrens Title subdivision (one into two lots), the objectives at cl 4.1 Minimum subdivision lot size are applied to guide the minimum site area for dual occupancies which are as follows:

(a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes and shapes are able to accommodate development consistent with relevant development controls,

(d) to restrict the fragmentation of land for rural residential purposes.

17. The Written Request provides the following assessment to support the conclusion that the Proposed Development achieves the objectives of cl 4.1 of the KLEP:

**“**Objective (a): The corner allotment, dimension and site area is suitable for the proposed dual occupancy development with each dwelling designed to address Talinga Avenue and Merindah Avenue respectively, the built form is compatible with the predominant form and presentation of development of the area.

Objective (b): The site area is sufficient to accommodate development that does not result in unreasonable amenity impacts to the adjoining properties noting the site area and configuration (corner site) ensures development can be position on the site to minimise impacts on the adjoining properties achieved by adequate rear setbacks (6A Merindah) and side (east) setback to 19 Kurrawa Avenue confirming the site area can accommodate the development without unreasonable amenity impact on the neighbouring properties.

Objective (c): As addressed above, the lot size and shape – corner site can accommodate the dual occupancy development. The development meets the height of buildings and floor space ratio (FSR) development standard for each allotment and is consistent with the building envelope controls at Topic 6.4 Dual Occupancies of the Kiama Development Control Plan (DCP).

Objective (d): Not applicable.”

18. The Written Request then goes on to set out the environmental planning grounds to justify the contravention to the site area standards as follows:

“In accordance the architectural plans (Revision Q prepared by Front on Design) the corner site is suitable for the proposed detached dual occupancy development. The design ensures each dwelling presents to a street frontage – Talinga Avenue and Merindah Avenue, the built from has adequate separation to present as separate dwellings compatible for the form and scale of development in the locality and the proposed built form ensures that the minor variation to minimum site area will not be discernible from the public domain.

The proposed dual occupancy development meets the exception to minimum subdivision lot size for dual occupancies in Zone R2 and Zone R3 and that allows consent to be granted to the subdivision of land if there is development consent for the erection of a dual occupancy on the land if each lot is equal of greater than 50% of the minimum lot size shown on the map – 225m2. Further, the development proposal is consistent with the objective of this clause noting the corner site allows for the subdivision of the proposed dual occupancy development that can be accommodated on the site area, is compatible with development in the locality, achieves good residential amenity and will not result in unreasonable amenity impacts.

Notwithstanding the non-compliance with the site area standard at Section 4.1E(4), the development complies with the built form development standards including height of buildings and floor space ratio ensuring the site has sufficient area to accommodate development that is consistent with the desired future character as directed by the planning controls and includes the provision of additional housing within a low density residential environment.

There are no adverse amenity impacts arising from the variation of the minimum site area standard (with regard to overshadowing, visual privacy, view loss). The lack of adverse amenity impacts arising from a variation is a recognised environmental planning ground. Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at 34.

The proposed development is consistent with the relevant aims of the Kiama LEP as follows:

(2)(f) The proposed development provides for additional housing and housing choice within Kiama Downs, an existing low density area that is within the catchment of the Kiama Downs local shops and Jones Beach providing additional housing in a well serviced locality.

(2)(i) The proposed development is an orderly and economic use and development of the land by providing dual occupancy development on a corner site consistent with the relevant objective of the R2 – Low Density zone, development that has good residential amenity and is compatible with the form and scale of development in the locality.

The variation in minimum site area for dual occupancy development is consistent with the following objects of the Environmental Planning and Assessment Act, 1979 as follows: 1.3(b) – The proposed dual occupancy development promotes the supply of housing within an existing low density residential locality. The development, despite the variation in site area, will allow for a built form that is compatibility with the desired future character of the locality, and the variation will not result in unreasonable amenity impacts.

1.3(g) – The proposed dual occupancy development has been designed to achieve a good design outcome for the subject site being consistent in form and scale of development within the locality.

1.3(k) – As addressed, the proposed development is an orderly and economic use and development of the land by providing dual occupancy development on a corner site consistent with the relevant objective of the R2 – Low Density zone.”

19. The Court is satisfied, the Applicants’ Written Request seeking to justify the contravention of the development standard in cl 4.1E of the KLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the KLEP.

20. The Proposed Development is below the maximum height of building development standard of 8.5m: cl 4.3, KLEP.

21. The Proposed Development complies with the Floor Space Ratio development standard of 0.45:1: cl 4.4, KLEP.

22. The site is identified as Class 5 Acid Sulfate Soils pursuant to cl 6.1 of the KLEP. Development consent is required for the carrying out of works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the water table is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. The Site is located approximately 440m from the nearest Class 1, 2, 3 or 4 land. As the Proposed Development does not include substantial excavation (refer to Sections A & B, Drawing DA09 Revision Q), it will not cause the water table to be lowered below 1 metre Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land.

23. The Court is satisfied that the requirements of cl 6.12 of the KLEP are satisfied because the existing dwelling is fully serviced, and relevant conditions have been imposed.

24. Pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), the Court must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site for the proposed development and whether the satisfactory measures are put into place to remediate the land should it be required to do so.

25. Although the Site has historically been used for residential purposes and the land use has remained unchanged, the Applicants have filed with the Class 1 Application at tab 12 a Hazardous Building Materials Assessment Report by Opterra dated 16 February 2025. The Report provides recommendations for remediation of contamination. That report is expressly referenced in the agreed conditions of consent at Annexure A at condition 1 and condition 13 is also imposed regarding the handling of asbestos. Therefore, the Court can be satisfied that the requirements of s 4.6(1) of the Resilience and Hazards SEPP have been satisfied.

26. The Site is located within the “coastal environment area” and the “coastal use area” pursuant to the Resilience and Hazards SEPP ss 2.10 and 2.11. The Court as the consent authority, must be satisfied that the development is designed, sited and will be managed to avoid an adverse impact or, if the impact cannot be reasonably avoided, the development is designed, sited and will be managed to minimise that impact or, if the impact cannot be minimised, the development will be managed to mitigate that impact.

27. In relation to the Coastal Environment Area s 2.10, the parties have considered whether there will be adverse impacts on:

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

28. The parties explain as follows:

For matters (a)-(d), stormwater and erosion control measures have been implemented by the preparation of stormwater drawings and the imposition of conditions which will ensure an improvement in the quantity and quality of runoff compared to the pre-development scenario. This will ensure that any impacts are minimised. Conditions 15, 17, 23, 24, 31 and 47 have also been imposed to ensure that any remaining impacts will be mitigated.

For matters (e)-(g), the site is not located within, and is not adjacent to, any public open space, the foreshore, the beach, any headland or rock platform, or the surf zone. The site is not identified as an Aboriginal place and Aboriginal objects have not been located on the site. The development is sited such that any adverse impacts are avoided.

29. In relation to the Coastal Use Area s 2.11(a), the parties have considered whether there will be adverse impacts on:

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage,

30. The parties explain as follows:

For matter (ii), impacts are minimised by the siting of the proposed buildings which is further discussed in the cl 4.6 request.

For matters (i) and (iii)-(v) any adverse impacts are avoided as the site is not located within proximity of, and does not prevent access to, any foreshore, beach, headland or rock platform; the proposed development is not located on a headland and does not impact any views of the coast; and the site is not identified as an Aboriginal place and Aboriginal objects have not been located on the site.

31. Accordingly, the Court can be satisfied that the development has been designed, sited and will be managed to avoid, minimise or mitigate any adverse impacts on matters raised in 2.10(1) or 2.11(1)(a) of the Resilience and Hazards SEPP.

32. A BASIX certificate No. 1786202M_03 dated 5 February 2026 has been provided which satisfies the requirement of the State Environmental Planning Policy (Sustainable Buildings) 2022 that the proposed dwellings each comply with the State Government’s water and energy reduction targets.

33. 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 set out in this judgment.

34. 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.

Notations:

35. The Court notes:

36. Kiama Municipal Council as the relevant consent authority for the purposes of section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) approves the amendment to Development Application DA 10.2025.103.1 to rely on the following amended plans and documentation:

(a) Architectural drawings as follows:

| Plan | Drawn by | Dated | | DA01 – Site Analysis and Location Plans – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA03 – Ground Floor – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA04 – First Floor – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA05 – Roof Plan – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA06 – Elevations 01 & 02 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA07 – Elevations 03 & 04 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA08 – Elevations 05 & 06 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA09 – Sections A & B – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA10 – Sections C, D & E – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA11 – Perspective Views 01 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA12 – Perspective Views 02 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA13 – Perspective Views 03 – No.6 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA14 – Perspective Views 04 – No.6 – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA15 – Perspective Views 05 – No. 6A – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA16 – Perspective Views 06 – No. 6A – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA17 – Window & External Door Schedules – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA18 – Subdivision Plan – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA19 – FSR Plans – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA20 – Shadow Diagrams – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA21 – Landscape Plan – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA22 – Adaptable Housing – Ground Floor – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | DA23 – Adaptable Housing – First Floor – Rev Q | Front-On Design – Mike Laidler | 10/12/2025 | | A1 – Stormwater Plan for Proposed New Detached Duplex | Set Consultants Pty Ltd | 3/02/2026 | | BASIX Certificate No. 1786202M_03 | Paul&David Consulting Pty Ltd | 5/02/2026 |

(b) Clause 4.6 Variation Request relating to Minimum site area for dual occupancies prepared by Chapman Planning Pty Ltd dated 13 January 2026;

Orders:

36. The Court orders:

37. The appeal is upheld.

38. Development Application DA 10.2025.103.1 for the demolition of existing 2-storey brick veneer dwelling including removal of the existing driveway, the erection of a new 2-storey detached dual occupancy with each dwelling comprising three (3) bedrooms, living areas, kitchen, bathrooms, laundry and storage areas and attached garages with internal access and one (1) into two (2) lot Torrens title subdivision at 6 Merindah Avenue, Kiama Downs is determined by the grant of development consent subject to the conditions at Annexure A.

E Espinosa

Commissioner of the Court

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Annexure A (429 KB, pdf)