Altin Holdings Pty Ltd v Wollongong City Council

[2022] NSWLEC 1329

Land and Environment Court

New South Wales

Medium Neutral Citation:

Altin Holdings Pty Ltd v Wollongong City Council [2022] NSWLEC 1329

Hearing dates:

Conciliation conference on 21 June 2022

Date of orders:

28 June 2022

Decision date:

28 June 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent in the agreed amount of $4,950 that have been thrown away as a result of the amendment of the application for development consent, within 30 days of the date of these orders.

(3)   Development consent is granted to development application DA-2019/1124 which seeks consent for the demolition of the existing dwelling house and construction of a multi dwelling housing development comprising 5 attached dwellings and on-site parking including civil works and tree removal at 92-94 Princes Highway, Thirroul, subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – multi dwelling housing development - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7
Environmental Planning and Assessment Regulation 2021, cl 27

Environmental Planning and Assessment Regulation 2000, cl 55 and Schedule 1

Interpretation Act 1987, s 30A

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021

State Environmental Planning Policy (Infrastructure) 2007, cl 101

Wollongong Local Environmental Plan 2009, cll 5.10, 7.3, 7.5, 7.6

Category:

Principal judgment

Parties:

Altin Holdings Pty Ltd ACN 768265615 (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
K Marginson (Solicitor) (Applicant)
E Kilpatrick (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2021/268628

Publication restriction:

No

Judgment

1. COMMISSIONER: The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against Development Application DA-2019/1124 seeking development consent for the demolition of an existing dwelling house and construction of a multi dwelling housing development comprising 6 attached dwellings and on-site parking, civil works and tree removal (the Proposed Development) at 92-94 Princes Highway, Thirroul legally described as Lot 2 DP 202822 (the Site). The portion of the Princes Highway where the Site is located is also known as Bulli Pass.

2. These proceedings were listed to commence for hearing on 21 June 2022 for 2 days.

3. On 21 October 2021, the Respondent filed its Statement of Facts and Contentions (SOFC).

4. The contentions raised by the Respondent included no provision of owner’s consent for works proposed to widen Bangalow road, a poor design outcome due to proposed parking arrangements, adverse impacts on biodiversity values arising from proposed road widening works and insufficient provision of information considering stormwater runoff, risk instability associated with road works, bushfire, landscaping and non-compliance with the clauses pursuant to State Environmental Planning Policy No. 55 – Remediation of Land.

5. On 2 February 2022, the parties attended a s34 conciliation conference presided over by Acting Commissioner McEwen.

6. Following the conciliation conference, the Applicant provided the Respondent with a series of amended plans which ultimately made the following changes to the proposal:

1. removal of the proposed road widening works associated with Bangalow Road from the application;

2. a reduction in the number of dwellings from 6 to 5;

3. redesign of the dwellings to remove all tandem garage carparking;

4. an increase in the area of landscaping across the front elevation;

5. an increase in the side boundary setback to the west; and

6. an increase in the size of the bin storage area.

7. It is agreed between the parties that the amendments have substantially resolved the issues raised in the SOFC such that the parties now seek to enter into a s34 agreement which has been filed with the Court on 20 June 2022.

8. At the request of the parties, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 21 June 2022. I presided over the conciliation conference.

9. 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.

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

11. 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 a number of environmental planning instruments. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional note and I set out below how each jurisdictional prerequisite has been satisfied.

12. Owner’s consent dated 24 August 2019 has been given to the Applicant for lodgement of the Development Application and is located with the Development Application form filed with the Class 1 Application on 22 September 2021, under Tab 1.

13. A number of State Environmental Planning Policies that applied to the Proposed Development were repealed during the appeal process. The provisions were transferred into new State Environmental Planning policies. Pursuant to s 30A(2) of the Interpretation Act1987, where provisions are transferred, the “transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.”

14. The Development Application was lodged when the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applied. On 1 March 2022, this SEPP was repealed, and its provisions were transferred to State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure).

15. Clause 101 of the Infrastructure SEPP requires that the consent authority must be satisfied that the safety, efficiency and ongoing operation of a classified road will not be adversely impacted by the Proposed Development. It is relevant that the Respondent Council referred the Proposed Development to Transport for NSW (TfNSW) for comment on three separate occasions and received responses by way of letters dated 31 January 2020, 8 September 2020 and 13 September 2021. Whilst the initial TfNSW letter raised concerns with the development of multi-dwelling housing on the site and in the Bulli Pass locality more broadly; subsequent responses to amended forms of the development focused on issues relating to rubbish collection and tandem carparking. These matters are considered to have now been addressed through further amendments to the Proposed Development.

16. In relation to the satisfaction of requirements under the SEPP Transport and Infrastructure, the Applicant has prepared and submitted an Amended Statement of Environmental Effects prepared by MMJ dated July 2021, filed 22 September 2021, which addresses the requirements of cl 101 of the Infrastructure SEPP , namely that access to the site will be via a single vehicle crossing on the north west of the site.

17. A Traffic and Parking Impact Assessment dated 2 October 2019 was prepared by ATB Consulting Engineers and lodged with the Development Application located under Tab 5 of the Class 1 Application filed 22 September 2021, to assess traffic characteristics and movements within the site and local road network. These assessments provide the following conclusions:

1. the driveway layback has been designed so that two vehicles can simultaneously enter and exit the driveway using the kerbside lane only.

2. the proposed development is a low trip generator for the weekday AM and PM peak hour; and the additional trips generated as a result of the proposed development can be accommodated at the nearby intersection without noticeably affecting intersection performance, delays or queues.

18. The Development Application was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

19. Clause 7 of SEPP 55 (now s 4.6 of the Resilience and Hazards SEPP) requires a consent authority not to grant development consent unless it has considered whether land is contaminated.

20. In relation to the satisfaction of requirements under the SEPP 55, the Applicant has prepared and submitted an Amended Statement of Environmental Effects prepared by MMJ dated July 2021 which address the potential issues relating to contamination of land, namely that the site has been historically used for residential purposes and there is no available evidence of contamination and as such no further investigation is deemed warranted.

21. An amended BASIX Certificate dated 30 May 2022 has been provided and filed with the Court on 20 June 2022, pursuant to the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 by the Applicant to accompany the Amended Application to satisfy the requirement in Sch 1 of the Environmental Planning and Assessment Regulation 2000 (now cl 27, Environmental Planning and Assessment Regulation 2021).

22. Under the Wollongong Local Environmental Plan 2009 (WLEP):

1. the site is zoned R2 Low Density Residential;

2. ‘multi dwelling housing’ is permissible with consent in the R2 zone;

3. the site has a total area of 1,709.1m²;

4. the maximum height permissible on the site is 9m. The development comprises dwellings with a height ranging between 7.89m and 9m above ground level, thereby complying with the building height development standards;

5. pursuant to the floor space ratio map, the development standard is 0.5:1. The development is consistent with the applicable development standard in terms of floor space ratio, with a proposed floor space ratio of 0.49:1;

6. the site is not listed as a heritage item however it is situated in the vicinity of (diagonally opposite) a heritage item for the purposes of cl 5.10(5). Council, as consent authority, did not consider that a heritage assessment report was warranted in support of this Proposed Development because of the scale and proximity of the Proposed Development together with conditions of consent 10 and 11 as to finishes to be used on the Proposed Development;

7. the site is not located within a ‘flood planning area’ for the purposes of cl 7.3;

8. the site is not located within a mapped acid sulfate soils area for purposes of cl 7.5;

9. clause 7.6(2) sets out matters for consideration prior to the grant of development consent, with respect to earthworks. The Applicant lodged a Geotechnical Assessment prepared by Douglas Partners dated 30 July 2019 located under Tab 7 of the Class 1 Application filed 22 September 2021, together with a Geotechnical Declaration and Verification of Development Application dated 30 July 2019 with the Development Application to Council, located under Tab 1 of the Class 1 Application. On the basis of this assessment and the declaration, the Court is satisfied that the matters specified in cl 7.6(2) have been considered and Council deems the Proposed Development to be satisfactory;

10. the Site is situated in bushfire prone land. All relevant bushfire related matters are able to be, and have been, addressed through conditions of consent; and

11. the rear of the site is situated within natural resource sensitivity – biodiversity land. A 6m wide deep soil zone is located across the rear of the site

23. For these reasons, 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.

24. 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:

25. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA-2019/1124 in accordance with the documents listed below:

Plan Name	Drawing number	Revision	Date	Prepared by
Architectural Plans
Site & Roof Plan	DA-AI 06	NN	12 May 2022	Design Workshop Australia
Lower Ground Floor	DA-AI 07	NN	12 May 2022	Design Workshop Australia
Ground Floor Plan	DA-AI 08	NN	12 May 2022	Design Workshop Australia
Level 1	DA-AI 09	NN	12 May 2022	Design Workshop Australia
GFA Plan	DA-AI 10	NN	12 May 2022	Design Workshop Australia
North & South Elevations	DA-AI 20	NN	12 May 2022	Design Workshop Australia
East & West Elevations	DA-AI 21	NN	12 May 2022	Design Workshop Australia
Section A-B	DA-AI 30	NN	12 May 2022	Design Workshop Australia
Section C-D	DA-AI 31	NN	12 May 2022	Design Workshop Australia
3D Views	DA-AI 50	NN	12 May 2022	Design Workshop Australia
3D Views	DA-AI 51	NN	12 May 2022	Design Workshop Australia
3D Views	DA-AI 52	NN	12 May 2022	Design Workshop Australia
Window Schedule	DA-AI 999	NN	12 May 2022	Design Workshop Australia
Stormwater Plans
Site Stormwater Layout	SW2	C	13 May 2022	ATB Consulting Civil & Structural Engineers
Landscape Plans
Cover Sheet	LA00	B	15 June 2022	Taylor Brammer Landscape Architects
Landscape Plan	LA01	B	15 June 2022	Taylor Brammer Landscape Architects
Painting Plan	LA02	B	15 June 2022	Taylor Brammer Landscape Architects
Landscape Sections	LA03	B	15 June 2022	Taylor Brammer Landscape Architects
Landscape Sections	LA04	B	15 June 2022	Taylor Brammer Landscape Architects
Tree Removal and Retention Plan	LA05	B	15 June 2022	Taylor Brammer Landscape Architects
Landscape Details	LA06	B	15 June 2022	Taylor Brammer Landscape Architects
Reports
Amended BASIX Certificate no 1045192M_04 dated 30 May 2022

2. The amended application was uploaded on the NSW planning portal on 17 June 2022.

3. The Applicant subsequently filed the amended application with the Court on 20 June 2022.

Orders:

26. The Court orders:

1. The appeal is upheld.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the costs of the Respondent in the agreed amount of $4,950 that have been thrown away as a result of the amendment of the application for development consent, within 30 days of the date of these orders.

3. Development consent is granted to development application DA-2019/1124 which seeks consent for the demolition of the existing dwelling house and construction of a multi dwelling housing development comprising 5 attached dwellings and on-site parking including civil works and tree removal at 92-94 Princes Highway, Thirroul, subject to the conditions of consent in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (303678, pdf)

Plans (3993819, pdf)

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Decision last updated: 28 June 2022