What has happened?
In Wilson v Kiama Municipal Council [2026] NSWLEC 1423, our firm acted for the successful applicant seeking development consent for a dwelling on an undersized rural lot on which there was no “dwelling entitlement”.
Context
Our firm previously acted for the successful applicant in Sharp v Kiama Municipal Council [2024] NSWLEC 1360 in which the Court confirmed that cl 4.2A of the Kiama Local Environmental Plan 2011 (KLEP) was a development standard (rather than a prohibition) and granted development consent for a dwelling on an undersized lot in contravention of that standard by upholding the applicant’s cl 4.6 request.
The Wilson v Kiama case was “round two” and similarly determined whether a dwelling could lawfully be constructed on a rural property located in the Kiama LGA because the size of the lot was less than the 40ha minimum lot size for dwellings in the rural landscape development standard contained in cl 4.2A of the KLEP.
The applicant relied upon a cl 4.6 request and other supporting material to justify contravening cl 4.2A of the KLEP.
The Council argued that there was no “dwelling entitlement” and that the applicant’s clause 4.6 request was inadequate because the development would not result in a planned rural residential outcome (a “planned outcome”).
In the Sharp v Kiama case, the Court found that a planned outcome could be in accordance with the provisions of the KLEP, and those provisions include development standards which may be contravened provided that the contravention is justified under cl 4.6 of the KLEP. Such a justified contravention of a development standard is a planned outcome.
Despite this earlier finding, Council argued in Wilson v Kiama that the only way to achieve a planned outcome in this context is to comply with cl 4.2A.
The Court disagreed with Council and found that the applicant’s cl 4.6 request met the objective of minimising unplanned development and otherwise met the requirements of cl 4.6 of the KLEP. It therefore granted development consent for the proposed dwelling.
How will this affect you?
While the term “dwelling entitlement” is often used by Councils, planners and developers, it is not a phrase that is used in the modern Environmental Planning and Assessment Act 1979 or any environmental planning instruments made under it.
The real question is whether the provision is a “development standard” or a “prohibition”. If it is a development standard that is amenable to cl 4.6, it is open to the consent authority to grant consent provided the requirements of cl 4.6 are met.
The absence of a “dwelling entitlement” is irrelevant and does not prevent the grant of consent.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.