ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council

[2018] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation:	ADM Projects (Australia) Pty Ltd t/as ADM Architects v Wollongong City Council [2018] NSWLEC 1541
Hearing dates:	20 September 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	By consent, the Court orders that:  (1)   No order as to costs; (2)   The request to vary the development standard in cl 8.6: “Building Separation within B3 Commercial Core” of the Wollongong Local Environmental Plan 2009 is upheld; (3)   The appeal be upheld; (4)   Development consent be granted to Development Application No. 2017/493 (as amended) for an eleven-storey commercial building, comprising ground floor retail uses and ten storeys of office space above, including three levels of basement parking on the lad at 95-109 Crown Street, Wollongong, subject to the conditions set out in Annexure A; (5)   The exhibits are returned with the exception of Exhibits A, 3 and 4.
Catchwords:	DEVELOPMENT APPLICATION: partial demolition of existing building and the construction of new commercial building – consent orders – variation to Building Separation Standard – public objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Wollongong Local Environmental Plan 2009
Cases Cited:	Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Wehbe v Pittwater Council (2007) 156 LGERA 446 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Texts Cited:	Practice Note Class 1 Development Appeals Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	ADM Projects (Australia) Pty Ltd t/as ADM Architects (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: A Pearman (Applicant)   Solicitors: Hunt and Hunt Lawyers (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/204945
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act1979 (the Act) against the deemed refusal of the Applicant’s Development Application No. DA-2017/493 by Wollongong City Council (the Respondent). The Applicant seeks approval for the demolition and construction of a new commercial office block. The development comprises eleven storeys of commercial office space over ground floor retail and three levels of basement car parking. The site is known as “Langs Building” with a street address of 95-109 Crown Street, Wollongong.

2. Following the termination of the conciliation, held pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act), the parties continued discussion on the form of development proposed for the site. On 11 September 2018, the Applicant, by way of notice of motion, was granted leave to rely on an amended set of architectural plans.

3. The Respondent is satisfied that the amended plans address the issues raised by them in the Statement of Facts and Contentions dated 10 August 2017 (Exhibit 1).

4. The parties seek for the appeal to be resolved through consent orders.

5. In circumstances where the Council agrees to the grant of development consent, I am nonetheless required to carry out an assessment under s 4.15 of the Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. The Practice Note - Class 1 Development Appeals (Practice Note) sets out the procedural requirements at par 99:

“Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:

(i) the content of the proposed orders (including the proposed conditions of consent);

(ii) the date of the hearing by the Court to consider making the proposed consent orders; and

(iii) the opportunity for any such person to be heard,

or that, in the circumstances of the case, notification is not necessary.”

The Site and Locality

6. The site is located in the eastern portion of the Crown Street Mall in the Wollongong CBD and comprises four allotments. The legal description of the Site is Lot 1 DP 66347; Lot 1 DP 69724; Lot 1 DP 746944; Lot 21 DP 1059144. Lot 21 DP 1059144 (“Lot 21”) is the stratum air space allotment over Simpson Place.

7. The Site has frontage to the Crown Street pedestrian mall to the north, Kembla Street to the east and Simpson Place to the south. The Site currently contains a two-storey commercial building, known as “Langs Building” on the front portion, an open at-grade car park to the rear and a number of trees along the Kembla Street frontage.

8. To the south of the Site on the opposite side of Simpson Place is St Andrews Church.

9. Further to the west of the site is the Crown Street Mall, with a mixture of two- to three-storey commercial buildings present, which are a variety of ages.

10. The precinct includes a number of heritage items as listed in Schedule 5 of the Wollongong Local Environmental Plan 2009 (LEP 2009), identified as follows:

• Item 6371- Wesley Uniting Church;

• Item 6228- St Andrew’s Presbyterian Church, hall;

• Item 6239- Royal Bank Item 6284 – Row of Hills Figs Item 6285- Norfolk Island Pine;

• Item 6381- Wollongong Town Hall and former council chambers (now art gallery);

• Item 6370- Wollongong East Post Office Item 6238 – Shop.

Planning Controls

11. Pursuant to cll 45 and 104 of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP), the application is integrated development as it requires approval of the electricity supply company and the NSW Roads and Maritime Authority respectively. Both authorities have provided their concurrence and their conditions are incorporated in the draft conditions agreed to in the consent orders (Exhibit 4).

12. The site is within the B3 Commercial Core zone under the provisions of the LEP 2009. The objectives of the zone are:

• To enable a range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To strengthen the role of the Wollongong City Centre as the regional business, retail and cultural centre of the Illawarra Region.

• To provide for high density residential development within a mixed use development if it:

(a) is in a location that is accessible to public transport, employment, retail, commercial and service facilities; and

(b) contributes to the vitality of the Wollongong City Centre.

13. The proposed development is categorised as “commercial premises” and is permissible with consent. The Respondent accepts that the development is consistent with the zone objectives.

14. LEP 2009 at cl 4.3 Height of Buildings provides a maximum height for development on the site of 48m. The development complies with this standard.

15. The applicable floor space ratio (FSR) for the subject site is detailed in cl 4.4A of LEP 2009. By application of cl 4.4A(2)(b), the site has a maximum FSR of 6:1. The development proposed an FSR of 5.95:1 and is compliant with this standard.

16. Clause 7.13 of LEP 2009 requires the consent authority to be satisfied, prior to the grant of consent that the ground floor of the building: (a) will not be used for residential accommodation; and (b) will have at least one door or window on the front of the building facing the street. A review of the architectural plans in Exhibit A confirms this precondition is met.

17. Clause 7.18 of LEP 2009 requires the consent authority to be satisfied, prior to the grant of consent that the proposed development exhibits design excellence. The Respondent argues that the latest amended architectural plans, incorporating the retention of the lower two storey building façade and a slender tower form, satisfy this clause. Following a review of the amended architectural plans and the Urban Design Statement prepared by Mr Rohan Dickson (Exhibit A), I am satisfied, for the purposes of cl 7.18, that the application demonstrates design excellence and this precondition is met.

18. The proposed development relies on a variation to cl 8.6: Building separation within Zone B3 Commercial Core or Zone B4 Mixed Use in LEP 2009. The clause states:

8.6 Building separation within Zone B3 Commercial Core or Zone B4 Mixed Use

(1)  The objective of this clause is to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access.

(2) Buildings on land within Zone B3 Commercial Core or B4 Mixed Use must be erected so that:

(a)  there is no separation between neighbouring buildings up to the street frontage height of the relevant building or up to 24 metres above ground level whichever is the lesser, and

(b)  there is a distance of at least 12 metres from any other building above the street frontage height and less than 45 metres above ground level, and

(c)  there is a distance of at least 28 metres from any other building at 45 metres or higher above ground level.

(3)  Despite subclause (2), if a building contains a dwelling, all habitable parts of the dwelling including any balcony must not be less than:

(a)  20 metres from any habitable part of a dwelling contained in any other building, and

(b)  16 metres from any other part of any other building.

(4)  For the purposes of this clause, a separate tower or other raised part of the same building is taken to be a separate building.

(5)  In this clause:

street frontage height means the height of that part of a building that is built to the street alignment.

19. LEP 2009, at cl 4.6, provides a degree of flexibility in the application of development standards to achieve better outcomes in certain circumstances.

20. However, consent must not be granted for a development that exceeds the development standard, unless the Court has considered a request that adequately addressed the matters required to be demonstrated by cl 4.6(3), namely:

(a) compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

21. Wollongong Development Control Plan 2009 (DCP 2009) applies to the assessment of the proposed development. In particular Chapter B4, Part D13: Wollongong City Centre is of relevance.

22. The desired future character of the commercial core is defined in DCP 2009, Part D13: Wollongong City Centre at cl 1.1(4) as follows:

“The commercial core is the ‘heart of the city’ where the focus is on high quality buildings, streetscapes, public art, outdoor eating and a collection of attractive public spaces such as a new forecourt to the railway station, rejuvenated MacCabe Park and Crown Street Mall, new civic square on Crown Street and an attractive collection of laneways and arcades. The primary retail focus is Crown Street Mall. The core retail area along Crown Street is generally characterised by street enclosing buildings forming continuous building facades that provide for an active street frontage to all commercial core streets. Streets are to have continuous awnings to give weather protection to concentrated pedestrian street activity.”

(Exhibit 2)

23. This desired character is codified in the following development controls:

1. Clause 2.2.1(2) “Building to street alignment and street setbacks”: which states:

“buildings are to be built up to the street alignment to reinforce the urban character and improve pedestrian amenity and activity at street level. Above street frontage height, tall buildings are to be set back to provide for sunlight to streets, and daylight to pedestrian areas and lower levels of other buildings.”

2. The relevant development control is to have a nil setback for the street frontage height and a 4m setback above.

3. Clause 2.3 “Street Frontage Heights” identifies a preferred street frontage height for the commercial core of between 12m and 24m, dependant on context and sun access requirements.

4. Clause 2.5 “Side and Rear building setbacks and building separation” reflects the provisions of cl 8.6 of LEP 2009 which are discussed below. The objectives of cl 2.5 are:

“a) To ensure an appropriate level of amenity for building occupants in terms of daylight, outlook, view sharing, ventilation, wind mitigation, and privacy.

b) To achieve usable and pleasant streets and public domain areas in terms of wind mitigation and daylight access.”

24. At cl 7.9 in Chapter E3 of DCP 2009 are the relevant provisions for mechanical parking systems. The Council, in opening submissions, noted it is satisfied the Applicant has provided the detail required by cl 7.9(3) and that the mechanical parking system proposed is acceptable.

25. It is agreed between the parties that with the use of mechanical parking the application complies with the parking requirements of DCP 2009 at Schedule 1 of cl 7.1: “Car Parking, Motor Cycle, Bicycle Requirements and Delivery / Servicing Vehicle Requirements”.

26. As detailed at par [10], the site is within proximity of a number of listed heritage items. As a result, Chapter E11: Heritage Conservation of DCP 2009 applies. Mr Seton, in opening submissions, noted that the Council is satisfied the objectives of the DCP are met, and that the proposal does not detract from the identified significance or setting of the heritage buildings.

Assessment of the requested variation

27. The Applicant seeks to vary the development standard of cl 8.6 in LEP 2009 (refer to par [18]).

28. The submitted variation request details the extent of variation as follows:

“…

Variation 1 - As with the original application, the proposal will adjoin Nos 111-113 Crown Street to the west at ground level in accordance with sub. clause 8.6 (a). However, in order to maintain the existing heritage façade as a podium, the proposal will not achieve the potential street frontage height…. A compliant street frontage height would extent to the top of the old Westpac building at 32 AHD. The retained façade will have a maximum height of 22.9 AHD.

…

Variation 2 – as indicated there is no adjoining building above the street frontage height. However, with the potential for future development, the 12m building separation provision contained in sub clause 8.6(b) should be considered. This would reasonably encompass a 6m setback on either side of the shared boundary line. The proposal provides a western setback ranging between 4.42 and 4.59m.

Variation 3 – The proposed building height is 47.8m resulting in the top 2.8m being assessed under sub clause 8.6(c). As with variation 2, while there is no adjoining building at this height, a setback of half the required building separation (14m) is considered. The proposal only encompasses the roof plant level above 45m which has a minimum setback of 4.42m.”

(Exhibit A)

29. The onus is on the Applicant to meet the tests of cl 4.6 in seeking flexibility to the Building Separation standard at cl 8.6 of LEP 2009: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 at [25] (Initial Action). The Applicant’s written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));

• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

30. The Court, on appeal, must form a positive opinion of satisfaction that the Applicant’s written request has adequately addressed the matters in cl 4.6(3): Initial Action at [25].

Whether compliance with the development standard is unreasonable or unnecessary

31. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 at [42]-[51] (‘Wehbe”).

32. Namely, that:

1. the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1);

2. the underlying objective or purpose of the standard is not relevant to the development, so that compliance is unnecessary (Wehbe test 2);

3. that the objective would be thwarted if compliance was required, so that compliance is unreasonable (Wehbe test 3);

4. that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or

5. that the zoning of the land is unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (Wehbe test 4).

33. In Initial Action, Preston CJ notes that the preceding five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (at [22]).

34. In this appeal, the Applicant has utilised the Wehbe test 3. The Applicant argues that the objective would be thwarted if compliance was required, so that compliance is unreasonable on the following grounds:

“In our opinion, the underlying purpose of the development standard is to provide for a sympathetic built form that maintains the privacy and amenity of surrounding properties. Notwithstanding the non-compliance, the proposal provides an improved interface with the neighbour. The minor building separation non-compliances facilitate a compliant height which is consistent with surrounding and desired future development. As indicated, the adjoining property has expressed support for the proposed non-compliance.

In addition, non-compliance creates an improved urban design outcome by retaining the existing podium and facilitating a pedestrian walkway along Simpson Street. This is consistent with the design excellence requirements under Clause 7.18 of the LEP.

…

The proposed building separation creates an improved urban design outcome and therefore enforcing strict compliance is considered unreasonable or unnecessary in the circumstances of the case.”

(Exhibit A)

35. The Council accepts the Applicant’s justification for the variation and agrees with its reasoning. The Council concludes:

“The non-compliant building separation distances to the western boundary better responds to the desired character of the precinct, with the setbacks to Crown and Kembla Streets being increased to retain important view corridors along Crown and Kembla Streets and to increase solar access for the church to the south.

The departure to the required building separation to the western boundary arises from Council’s desire for the redevelopment of the site to incorporate the existing façade which is two storeys in height and also providing a more slender tower form above this façade than originally proposed. Retaining the two storey façade results in a lower podium level, (and) reduced bulk and sense of enclosure from the public domain. Achieving the requirement under Clause 8.6(2)(b) for there to be a distance of 12m from the adjoining building does not provide the desired streetscape outcome the circumstances.”

(Exhibit 2)

36. The Council is satisfied that the Applicant’s variation request adequately established that the compliance with the standard is unreasonable and unnecessary in the circumstances.

37. With the benefit of a site inspection, I accept the Applicant’s reasoning at par [34] that compliance with the development standard is unreasonable and unnecessary in the circumstances of the subject site and the design proposed. I am satisfied that it is appropriate to apply the building separation standard flexibly for this particular development for the reasoning submitted by the applicant.

36. I find that I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2009.

Are there sufficient environmental planning grounds?

39. The Applicant’s written request must adequately demonstrate that there are sufficient “environmental planning grounds” that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly, “the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard”, and secondly: “the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter (citations omitted).”

40. In considering the Applicant’s case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248at [15].

41. The Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds:

“Urban Design

While strictly non-compliant with the building separation control, the revised proposal provides a superior urban design outcome. The proposal has been amended in accordance with the recommendations of Council's urban design expert. These changes include retaining the existing heritage facade to create a natural variation in materials and textures with the more contemporary tower element. In addition, the tower element will be better articulated and the use of facade materials will be consistent with Council's advice. This will create visual interest and result in an improved urban design outcome. As indicated, additional massing along the western elevation will also facilitate the reintroduction of the pedestrian walkway along Simpson Place.

Heritage

Council have indicated their support for Variation No. 1 on the basis of an improved heritage outcome. This is achieved by reducing the podium height against the street and by retaining the existing facade,

In our opinion, the imposition of the development standard would interfere with the proper management, renewal and general improvement of the subject site. The proposed non-compliances facilitate an economically viable development and will result in an improved traffic, heritage and urban design outcome.

For the reasons outlined above, it is our opinion that there are sufficient environmental planning grounds to justify contravening the development standard in the particular circumstances of the case and satisfies several tests in Wehbe.”

(Exhibit A)

42. The Council accepts the Applicant’s justification. The Council concludes:

“The justification rests on the urban design and heritage outcomes from the proposed setbacks, which reflect the recommendations of Council’s urban design expert to retain the heritage façade and provide a more slender element above. The proposed reduced western setbacks and increased setbacks to the Crown and Kembla Street frontages are a design response to the particular circumstances of the case given the surrounding heritage buildings and desired view corridors.”

(Exhibit 2)

43. I am satisfied that the variation to the development standard supports an improved urban design and place making outcome for the subject site by the retention of the façade at the street level and the increased slenderness of the tower element. Equally, the improved solar access and view corridors are positive environmental planning outcomes that arise from the variation itself.

44. Collectively, I accept these justify the contravention of the development standard.

45. I find that I can be satisfied that the Applicant’s written request adequately demonstrates the matters in cl 4.6(3)(b) of LEP 2009.

Are the matters in Clause 4.6(4) satisfied?

46. As stated in Initial Action at [14], cl 4.6(4) “establishes preconditions that must be satisfied before a consent authority [or the court exercising the functions of a consent authority] can exercise the power to grant development consent” (at [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a “jurisdictional fact of a special kind”, because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent.

47. At cl 4.6(4)(a)(ii), the Court must be satisfied that the development will be in the public interest because it is consistent with the objectives of the Building Separation standard and the objectives of the B3 zone: Initial Action at [26].

48. Pursuant to cl 4.6(a)(ii), I am satisfied that the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3), refer to pars [38] and [48].

49. The objectives of the zone are provided at par [12].

50. The Applicant argues that the objectives of the zone are met on the following grounds:

“Objective 1 - To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

The proposal provides both retail and office space which can cater for a wide range of tenancies and business. … The building separation non-compliance will enhance the layout and functionality of the internal floorspace which will allow a greater range of retail, business and office spaces in accordance with the objective.

Objective 2 - To encourage appropriate employment opportunities in accessible locations.

The proposal will provide significant additional long term employment opportunities within the Wollongong commercial core, which is partly facilitated by the improved internal layout as a result of the non-compliances, A variety of employment opportunities are created by the commercial and retail elements of the proposal.

The area is well located in terms of public transport and is accessible from throughout the Wollongong CBD. The additional city centre based employment will enhance the vitality of the regional business centre. The proposal will also provide short term employment opportunities during the construction phase. Accordingly, in our opinion, the proposal is consistent with Objective 2.

Objective 3 - To maximise public transport patronage and encourage walking and cycling.

The proposal provides additional employment in an accessible location which allows both public and active transport commuting options. …The site is located 800m from Wollongong Station and includes a bus stop 140m away on Burelli Street.

...

Sustainable modes of transport will be further encouraged through the provision of end of trip facilities such as bicycle storage and amenities. …The revised proposal will increase the southern ground floor setback from 7.75m to 9.03m compared to that previously proposed. This will allow for the re-introduction of the pedestrian path along Simpson Place.

..

Objective 4-To strengthen the role of the Wollongong city centre as the regional business, retail and cultural centre of the Illawarra region.

The proposal will provide a contemporary eleven (11) storey commercial building which has the potential to become a benchmark development that stimulates further growth.

...

Cultural values will be enhanced through the retention of eight panels of the Lang's Corner facade, including the entrance, and sympathetic design either side of the entrances to the building which give a natural end of the retained eight panels. Accordingly, the proposal will strengthen the role of the Wollongong city centre as the regional hub.

Objective 5 - To provide high density residential development within a mixed use development if it:

a)   is in a location that is accessible to public transport, employment, retail, commercial and service facilities, and

b)   contributes to the vitality of the Wollongong city centre

This objective is not relevant as the proposal does not include a residential component.”

(Exhibit A)

51. The objectives of the Building Separation standard are provided at cl 8.6(1), they are:

“… to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access.”

52. The Applicant argues that the objectives of the Building Separation standard are met on the following grounds:

“Visual Appearance

Variation No, 1 will maintain the existing fabric and facade as the podium level which will provide a better visual outcome. The historic frontage will provide visual interest from the street. In addition, a lower podium level reduces the bulk and sense of enclosure from the public domain. The existing neighbouring old Westpac building is likely to be redeveloped in the near future, and therefore aligning the attached building heights for the sake of visual consistency is not considered essential in this instance.

Variation No. 2 will contribute to an improved visual appearance with an overhanging section creating interest from the street. In addition, the revised design will present a consistent building line along the western elevation which is considered an improvement on the protruding amenities block previously proposed. In any event, the adjoining property at Nos. 111-113 Crown Street is only four storeys resulting in the required 12m building separation being achieved.

Variation No. 3 is minor and will not be readily visible from the street. It will therefore not have an adverse impact on the visual appearance of the building. The size of the plant area has been reduced in the latest design and the proposed setbacks will maintain the building line of the lower levels.

…

Privacy

The proposed building separation non-compliances are unlikely to have privacy impacts on the adjoining old Westpac building and will provide a reasonable level of amenity for future development on the neighbouring site. The existing neighbouring building has a blank wall facing the subject site, inhibiting any sightlines

…

The proposed setback will provide a reasonable level of privacy and amenity for future development on the neighbouring site, being a commercial use, there are unlikely to be significant noise impacts.

…

Aural impacts will be limited by the centralised location of plant equipment and the screening provided by the fire stairs and lift.

Accordingly, the areas of non-compliance with the building separation standard are unlikely to have adverse impact on privacy.

Solar Access

To assess any overshadowing implications of the proposal, shadow diagrams have been prepared for 9am to 3pm on the winter solstice (June 21), summer solstice (December 21) and the equinox. Some overshadowing impacts are inevitable given Council's desire for greater density on the site, While the proposed building separation non-compliances will result in some additional overshadowing, this remains significantly less than a compliant building envelope. Comparison models of a compliant built form against the proposal are provided in the revised architectural drawings, in addition, the revised design has generally reduced overshadowing, mostly as a result of the reduced podium.”

(Exhibit A)

53. The Council accepts the Applicant’s arguments in the preceding and adopts the Applicant’s reasoning. They conclude:

“The departure will not have any adverse impacts on the amenity of nearby developments, the streetscape or the public domain. There will be no additional overshadowing impacts arising from the development departure, no view impacts, no privacy impacts, no adverse impacts on the streetscape or any heritage items.

…”

(Exhibit 2)

54. I am satisfied on the basis of the arguments submitted by the Applicant, and agreed by the Respondent, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. Accordingly, I find that matters in cl 4.6(4)(a)(ii) are satisfied.

55. Finally, Initial Action notes at [29] that despite the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the Court Act, the Court should consider the matters in cl 4.6(5).

56. I find that I can be satisfied that the variation sought to the development standard does not raise any matter of significance for State or regional environmental planning, and that there are no specific circumstances that establish an overriding public benefit of maintaining the development standard in this case.

57. I find that the requirements of cl 4.6 of LEP 2009 are satisfied and the requested variation should be upheld.

58. Clause 4.6 is a precondition that must be satisfied before consent can be granted. For the above reasons, I am satisfied that the variation to the building separation development standard is warranted and consequently there is power, subject to merit assessment, to grant consent to the development application.

Merit Contentions raised

59. The Council filed a Statement of Facts and Contentions (Exhibit 1) that identified the following reasons why the unamended version of the application should be refused:

1. excessive Floor Space Ratio (FSR);

2. adverse impacts on the heritage significance of heritage items in the vicinity;

3. the proposed building is excessive in bulk and scale and inconsistent with the character of Crown Street;

4. non-compliance with provisions of DCP 2009 (setbacks, street frontage height, building depth and bulk, pedestrian amenity and building exterior);

5. traffic generation;

6. lack of concurrence from the NSW Roads and Maritime Services (RMS); and

7. insufficient onsite parking provided; and

8. inadequate provision for waste management, servicing and deliveries.

60. Consistent with the Practice Note, the Council has provided a planning assessment report that details how the Council has formed a view that it is now satisfied the above contentions are resolved and the application warrants approval. The reasoning of the Council can be summarised as follows:

• FSR:

The amended scheme has an FSR of 5.95:1, and is therefore compliant with the maximum FSR for the site of 6:1.

• Heritage, bulk and scale and character:

The amended scheme involves the dismantling and reconstruction of the existing building façade, maintaining the two storey podium height. The Council accepts outcome is consistent with the prevailing street character and will not have a detrimental impact on heritage items in proximity to the site. Further, the Council argues:

“The plans now include increased setbacks to Crown and Kembla Streets, which results in a more slender tower and reduces the shadow impact on St Andrews church. By increasing the setbacks to Crown and Kembla Streets, the scheme also reduces the visual impact when viewed along those streets.

…

It is considered that this contention has been suitably addressed and resolved.”

(Exhibit 2)

The assessment report notes that the commercial floor plates of levels 7 to 10 generally complies with the controls in DCP 2009 with the exception of building depth. This variation is accepted by the Council on the basis that due to the building design the floor will receive generous solar access.

Pedestrian access and activation of the street is noted as being resolved by the amended plans.

• Non-compliance with the relevant provisions of DCP 2009:

The Council assessment report notes that they are satisfied with the amended setbacks proposed to Crown and Kembla Street, as well as the retention of the splayed corner through the reconstruction of the existing façade. The Council notes:

“The proposed tower includes a variation to the western side setback requirements. This has been provided to allow the increased setbacks to the Crown and Kembla Street frontages.

The increased tower setback to Crown Street reduces the visual impact of the tower when viewed along Crown Street, which is a key view corridor in the CBD. The applicant has provided a larger setback to Crown Street than is required at the request of Council’s Urban Design expert.

The applicant has also provided a larger setback to Kembla Street to reduce the width of the tower and increase solar access for the church to the south.

…”

(Exhibit 2)

• Traffic generation, RMS concurrence:

The Council assessment report notes that the RMS has provided their concurrence and advised that:

“while the traffic generation from the proposed development will impact on the level of service of the local road network, the RMS will be less affected, and therefore a matter for Council to consider the operational efficiency of the local road network and whether any upgrades are required” (Exhibit 2).

The Council notes that the RMS comments have been assessed and these contentions have been resolved.

• Parking:

The Council assessment report notes that the applicant has addressed this contention by a lowering of the basement and the installation of mechanical stack parking to overcome the shortfall. These changes are accepted by Council and this contention is resolved.

• Waste Management:

The applicant has provided an amended design which the Council accepts demonstrates that adequate provision has been for onsite servicing and deliveries. With the imposition of the agreed conditions, the Council notes this contention is resolved.

Consideration of objections

61. The original development application was notified in June 2017. The Council received 559 objections to the development and 20 submissions in support. The issues raised in this initial notification are summarised in the Council assessment report as follows:

“- The objections relating to the closure of the Rad Bar – an existing entertainment venue in “Lang’s Building”. Reasons cited include the adverse impacts on the music and arts culture in Wollongong, particularly for the youth, and the impact the closure of this venue will have on the city and tourism. The Rad Bar is significant for the young adults in Wollongong, and is a drawcard for national and international bands to the region resulting in flow on economic benefits.

- Other objections can be summarised under the following areas: heritage matters (both for the existing building and for items in the vicinity), traffic concerns, contradictions to Council’s “Public Spaces, Public Life” study, provision of more office space when there is already a large proportion of vacant commercial tenancies and perceived overdevelopment of the site when expressed in terms of scale and character.

- The letters of support primarily relate to the economic benefits and job opportunities the development will bring, and the revitalisation it will provide to the eastern end of the retail pedestrian mall.”

(Exhibit 2)

62. Following the applicant being granted leave to amend their development, the Council renotified the application. The issues in the second notification are summarised in the Council assessment report as follows:

“- Retention of the ‘ugly’ façade – the manner in which the façade is being retained (by juxtaposing the new building with the existing one) is an eyesore.

- The rad bar (existing tenant of the building) is a culturally important facet of the emerging music community offering something vital for the city.

- Original concept was more appealing.

- The retention of the façade does not meet appropriate urban design, heritage or street activation disciplines.”

(Exhibit 2)

63. Following consideration of the issues raised by the public submission, the Council notes that in their assessment they do not warrant the refusal of the application. Importantly, the Council notes that “[t]he design approach has been supported by Heritage and Urban Design experts during the course of the assessment. Street activation will be achieved through the levels and design of the ground floor tenancies fronting Crown and Kembla Streets and as supported by recommended conditions of consent” (Exhibit 2).

Outcome of the appeal

64. Notwithstanding the parties’ agreement to Consent Orders in determining this matter, I have carefully considered the evidence and objections, the submissions and my observations during the onsite view. Having carefully considered the Council’s assessment report and the submissions, I am satisfied in my evaluation under s 4.15 of the Act that the amended proposal warrants approval.

65. The Practice Note requires: evidence that the approval is lawful and appropriate; satisfaction that any objections have been properly taken into account; and confirmation that reasonable notice has been given to all persons who objected to the proposal detailing the content of the proposed orders, the date of the hearing and the opportunity for them to be heard. I am satisfied that these requirements are met and accordingly, consent is granted to the development in accordance with the consent orders signed by the parties (Exhibit 4) and subject to the conditions of consent as agreed between the parties and annexed to this judgment.

Orders

66. By consent, the Court orders that:

1. No order as to costs;

2. The request to vary the development standard in cl 8.6: “Building Separation within B3 Commercial Core” of the Wollongong Local Environmental Plan 2009 is upheld;

3. The appeal be upheld;

4. Development consent be granted to Development Application No. 2017/493 (as amended) for an eleven-storey commercial building, comprising ground floor retail uses and ten storeys of office space above, including three levels of basement parking on the lad at 95-109 Crown Street, Wollongong, subject to the conditions set out in Annexure A;

5. The exhibits are returned with the exception of Exhibits A, 3 and 4.

…………….

D M Dickson

Commissioner of the Court

Annexure A: Conditions of Consent Annexure A (173 KB, pdf)

Decision last updated: 17 October 2018