A Kiama property developer has successfully navigated a legal challenge to add an extra storey to a beachside apartment block, securing approval for five additional units after taking the local council to court.
Court Conciliation Resolves Height Dispute
The developer, Level 33, initially proposed a four-storey complex named 'Elan' at Bourroul Street, overlooking Surf Beach. The plans included 15 residences. However, a subsequent modification request to add a fifth level containing another five apartments was met with a deemed refusal from Kiama Council.
This refusal prompted Level 33 to lodge an appeal with the Land and Environment Court. The court facilitated a conciliation conference, which led to an agreement between the developer and the council. A key point of contention was the building's height. Local regulations stipulate a maximum height of 17.5 metres for buildings of four storeys or fewer.
The court noted that while the 17.5-metre limit was technically complied with, the site's topography meant part of the structure would effectively constitute five storeys. The parties submitted, and the court accepted, a request to vary this standard, clearing the path for approval.
Approval Granted with Stringent Conditions
The court's formal ruling grants permission for the modification, which includes the five extra apartments and an enlarged basement to accommodate parking for 53 vehicles. As part of the settlement, the developer was also ordered to pay $8000 in costs to the Kiama Council.
The approval is not unconditional. It comes with a comprehensive set of 23 pages of conditions that Level 33 must adhere to during construction. These conditions include a developer contribution payment of $22,706 to the council for local infrastructure and services.
Other notable conditions mandate that a temporary construction fence be erected between the worksite and neighbouring land. Strict work hours have also been imposed: construction is only permitted from 7am to 5pm Monday to Friday, and from 8am to 1pm on Saturdays.
Implications for Local Development
This case highlights the complex interplay between development ambitions, local planning controls, and topographical challenges in coastal areas like Kiama. The use of the Land and Environment Court to resolve the dispute demonstrates a legal pathway available to developers when negotiations with local councils reach an impasse.
The final outcome adds to the density of the Bourroul Street site, bringing the total number of residences in the Elan complex to 20. The decision, finalised in late December 2025, sets a precedent for how similar height and storey disputes might be resolved in the future, particularly on sloped sites common in the Illawarra region.
