Kiama Investments No. 1 Pty Ltd v Kiama Municipal Council

Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Department of Planning and Environment, Apartment Design Guide, July 2015

Category: Principal judgment

Parties: Kiama Investments No. 1 Pty Ltd (Applicant)
Kiama Municipal Council (Respondent)

Representation: Counsel:
M Lewis (Solicitor) (Applicant)
L Fairgrieve (Solicitor) (Respondent)
Solicitors:
Bartier Perry (Applicant)
McCullough Robertson Lawyers (Respondent)

File Number(s): 2025/308518

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 deemed refusal of DA 10.2025.92.1. The DA seeks consent for the alterations and additions to an approved residential flat building for an additional level with 5 residential apartments and an enlarged basement with an additional 14 parking spaces at 19 and 21 Bourrool Street, Kiama (as Lot 2 DP 1065012 and Lot 1 DP 774101) (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 5 December 2025. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Reg) to the Applicant amending DA 10.2023.92.1 in accordance with the documents listed below:

| TAB | DOCUMENT | | 1. | Architectural Plans prepared by Design Corp Architects, dated 29 September 2025. | | Drawing No. | Drawing Title | Issue | Date | | - | Site Plan | D | 29/09/2025 | | - | Lower Ground Floor Plan | D | 29/09/2025 | | - | Ground Floor Plan | D | 29/09/2025 | | - | Sections | D | 29/09/2025 | | - | Sections | D | 29/09/2025 | | - | 17.5m Height Plane | D | 29/09/2025 | | - | Bourrool Street Section | D | 29/09/2025 | | - | Bourrool Street View 1 | D | 29/09/2025 | | - | Bourrool Street View 2 | D | 29/09/2025 | | - | Bourrool Street View 3 | D | 29/09/2025 | | - | Bourrool Street View 4 | D | 29/09/2025 | | - | Bourrool Street View 5 | D | 29/09/2025 | | - | Bourrool Street View 6 | D | 29/09/2025 | | - | Bourrool Lane View 7 | D | 29/09/2025 | | 2. | Clause 4.6 Variation Statement prepared by SET Consultants, dated 3 October 2025. | | 3. | Town Planning Response prepared by Set Consultants, dated 3 October 2025. |

4. As part of the conciliation conference process, 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 amended application and granting development consent to the amended DA subject to conditions of consent.

Jurisdictional Prerequisites

5. 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.

6. 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.

7. In considering if the agreement is a decision that could be made by the Court, the obligation is limited to being satisfied that there ‘are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement’ and not an evaluative decision: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [60] to [65] and Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [202] (Al Maha).

8. I have carried out the required jurisdictional check. For the reasons set out below, 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.

Owners consent

9. Owner’s consent accompanied the DA as required by s 23 of the EPA Reg. The Applicant is the owner of the site.

Community notification and objections

10. The Respondent notified the DA between 30 July 2025 to 13 August 2025. Three unique submissions were received. The amended DA does not require re-notification.

11. At the conciliation conference, the Court was provided with pressed objections from three residents, which were read. The parties have advised the Court that they considered the concerns raised in the written objections.

State Environmental Planning Policy (Housing) 2021

12. Chapter 4 of the Housing SEPP applies to the amended DA. Section 147 requires consideration of the design principles contained in Sch 9 and the Apartment Design Guide (ADG). Section 29 of the EPA Reg requires that residential apartment development must be accompanied by a statement prepared by a qualified designer in relation to the design principles within Sch 9 of the Housing SEPP and Parts 3 and 4 ADG.

13. The parties agree and I accept that the amended DA meets the provisions of the Housing SEPP on the basis of the Design Verification Statements completed by the nominated qualified designer Joe El-Sabbagh (registered architect number 8707) (Tabs 16, 17, 18 of the Class 1 Application).

14. The DA is made pursuant to Ch 6 low and mid rise housing. I accept that the following provisions have been satisfied:

15. The site is within 800m walking distance of a Town Centre (low and mid rise housing outer area) and satisfies s 163 of the Housing SEPP and none of the exclusions at s 164 apply (Tab 8 of the Class 1 application).

16. Section 176 applies a maximum height of 17.5m subject to the building being four storeys or fewer. The maximum height of 17.5m is complied with, however the parties submit that due to the topography of the site, part of the building is five storeys. Accordingly, the amended DA is accompanied by a cl 4.6 written request titled, Clause 4.6 Variation Statement, prepared by SET Consultants dated 3 October 2025 (written request). I accept the parties’ agreement that the written request adequately demonstrates the matters of cl 4.6(3) of the Kiama Local Environmental Plan 2011 (KLEP) and s 176 of the Housing SEPP.

17. Section 180 prescribes a maximum height of 17.5m and floor space ratio (FSR) of 1.5:1. The proposed development complies with the height and FSR development standards of the Housing SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. Chapter 2 in relation to coastal management applies to the site, which is mapped in the coastal environment area and coastal use area. The parties are satisfied and I accept that the relevant provisions have been met and that the design of the proposal, when considered with the original DA, does not cause any adverse impacts to environmental areas that Ch 2 is concerned about. Adequate erosion and sediment controls, as well as conditions, will ensure that construction and ongoing use will manage the impacts of the development.

16. Section 4.6 of SEPP RH applies to the site. The parties agree that the previous assessment undertaken by the DA that this consent relies on satisfied s 4.6 and found that the site will be suitable for the proposed use. This is nothing about the proposal that changes that assessment. The parties agree and I accept, that the provisions of s 4.6 of SEPP RH have been satisfied.

State Environmental Planning Policy (Sustainable Buildings) 2021

17. State Environmental Planning Policy (Sustainable Buildings) 2021 (SEPP SB) applies to the proposed development. The amended DA is accompanied by an amended BASIX Certificate. I accept the parties’ agreement that the provisions of SEPP SB have been met, including s 2.1(5) embodied emissions.

Kiama Local Environmental Plan 2011

18. The subject site is zoned R3 Medium Density Residential and the proposal for residential flat building is permissible with consent. Pursuant to cl 2.3 of the KLEP, I accept that regard has been had to the objectives of the zone.

19. Clause 4.1 minimum lot size prescribes a minimum lot size of 450m2. The site complies, at 701.4m2.

20. Clause 4.3 height permits a maximum building height of 11m. The development standard is overridden by the Housing SEPP.

21. Clause 4.4 floor space ratio (FSR) permits a maximum FSR of 1:1. The development standard is overridden by the Housing SEPP.

22. Clause 5.10 applies as the site is located near several local heritage items. I accept that the parties have considered potential heritage impacts from the proposal as demonstrated by the SEE and jurisdictional statement.

23. Clause 6.2 earthworks applies as additional earthworks are proposed for the basement. I accept that the parties’ have considered the provisions as demonstrated by the SEE and jurisdiction statement.

24. Clause 6.12 essential services applies. All services are currently available to the site, and adequate arrangements have been made for the proposed new stormwater and vehicular access services.

Heads of consideration

25. On the basis of the material accompanying the Class 1 appeal and the jurisdictional statement, I accept that the relevant matters for consideration pursuant to s 4.15(1) of the EPA Act 1979 have been adequately considered.

Conclusion

26. 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.

27. 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.

28. 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.

Orders

29. The Court orders that:

30. The Applicant is to pay Respondent's costs thrown away as a result of the amendments to the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) as agreed in the amount of $8,000, within 14 days of the date of these orders.

31. The appeal is upheld.

32. Development Application 10.2025.92.1 for alterations and additions to an approved residential flat building for an additional level comprising an additional five units and an enlarged basement to total 20 residential units, basement parking for 53 vehicles and associated works at 19-21 Bourrool Street, Kiama is determined by the grant of development consent subject to the conditions of consent contained in Annexure A.

S Porter

Commissioner of the Court

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Annexure A (366 KB, pdf)