Anglican Community Services, trading as Anglicare v Wollongong City Council - [2020] NSWLEC 1410

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Anglican Community Services, trading as Anglicare v Wollongong City Council [2020] NSWLEC 1410
Hearing dates: Conciliation conference on 24 August 2020
Date of orders: 04 September 2020
Decision date: 04 September 2020
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders that:
(1) The cl 4.6 written request for variation of the height development standard, dated 27 August 2020 is upheld.
(2) The appeal is upheld.
(3) Development Application No. DA 2019/1107 for the demolition of existing buildings, remediation works, earthworks, vegetation removal and construction of two (2) residential flat buildings containing self-care seniors housing apartments (one (1) x two (2) storey and (1) x three (3) storey residential flat building with a total of 60 self-contained dwellings and with basement parking for 21 spaces and a community building, with at–grade external car parking for 15 vehicles, together with associated stormwater management and landscaping works on 4 Lindsay Evans Place, Dapto, is approved subject to the conditions of consent at Annexure "A".

Catchwords:
DEVELOPMENT APPLICATION – seniors living –amenity – biodiversity conservation for endangered ecological communities – bushfire prone land – height standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders

Legislation Cited:
Biodiversity Conservation Act 2016
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Rural Fires Act 1997
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Wollongong Local Environmental Plan 2009

Texts Cited:
Apartment Design Guide
Wollongong Development Control Plan 2009

Category: Principal judgment
Parties: Anglican Community Services, trading as Anglicare (Applicant)
Wollongong City Council (Respondent)
Representation:
Counsel:
R Pleming (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)
Solicitors:
Allens (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2019/399086
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the deemed refusal of Development Application (DA) 2019/1107 by Wollongong City Council (hereafter the Council), which as amended, seeks the demolition of existing structures, remediation works, vegetation removal and construction of two residential flat buildings for self-care seniors housing and a community building, with parking on Lot 1 DP 1082602, also known as 4 Lindsay Evans Place, Dapto (hereafter the site).
This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 August 2020. I presided over the conciliation conference. There were no objectors whom raised issue during notification or spoke at this conciliation.
Prior to this conciliation conference, and following expert discussion, the applicant sought to amend the supporting plans to the DA and the Statement of Environmental Effects (SEE), which includes the cl 4.6 written request seeking variation of the height development standard. Leave was granted by the Court (Registrar) on 11 June 2020 to amend the DA under appeal.
The cl 4.6 written request to be relied on in this agreement was further amended and filed with the Court on 1 September 2020. The Court grants leave to rely on the amended cl 4.6 written request to vary the height development standard and to be relied upon in the granting of consent to the DA under appeal, which was unopposed by the respondent.
Based on these amended plans, together with the DA’s supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the issues raised by the objectors have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 2019/1107 with conditions.
Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act and being satisfied, pursuant to s 4.15(1) to grant consent to DA 2019/1107 with conditions, as described in Annexure A.
The parties identified the jurisdictional prerequisites of particular relevance to the Court to be satisfied to grant consent in these proceedings, pursuant to the requirements of ss 4.14 and 4.15 of the EPA Act, as consistency with the: Environmental Planning and Assessment Regulation 2000 (EPA Reg); Biodiversity Conservation Act 2016 (BC Act); Rural Fires Act 1997 (RF Act); State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65); State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX); State Environmental Planning Policy No 55—Remediation of Land (SEPP 55); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); and Wollongong Local Environmental Plan 2009 (WLEP). In addition, the Wollongong Development Control Plan 2009 (WDCP) is of consideration to grant consent to the DA.
The parties agree that the DA is made by the owner of the land and that the relevant requirements of the EPA Reg, specifically cll 50 and 92 are addressed to their satisfaction.
The site is located within an area that contains endangered ecological communities that are protected under the BC Act. The parties agree that the amended plans and the Biodiversity Development Assessment Report relied on for the consent of the DA, satisfy the requirements of the BC Act, and specifically ss 7.7 and 7.13 which were in contention.
The site is located within bushfire prone land and therefore is subject to the requirements of the RF Act, and ss 4.14 and 4.47 of the EPA Act. Pursuant to s 100B(3) of the RF Act, a Bush Fire Safety Authority was issued by NSW Rural Fire Service on 17 July 2020. The parties agree that the requirements of the RF Act, and ss 4.14 and 4.47 of the EPA Act are satisfied by the proposed development.
In compliance with the requirements of SEPP 65, the DA is supported by amended plans and the conditions of consent which address the relevant requirements for consideration. The proposed development provides appropriate design quality and has had regard to the requirements of SEPP 65 and the Apartment Design Guide (ADG). The parties agree that the requirements of the SEPP 65 are satisfied, and specifically cll 28 and 30 which resolve the contentions as posed.
The proposed development is required to comply with the provisions of the SEPP BASIX. A BASIX Certificate relevant to the proposed development is identified in the conditions of consent, in compliance with the SEPP BASIX provisions.
With regards to SEPP 55, the parties are satisfied that the proposed development complies, and specifically cl 7, based on the site investigation, the provision of a Remedial Action Plan (RAP) and conditions of consent requiring remediation works consistent with the RAP.
Due to the location of the site, the requirements of the SEPP Infrastructure is relevant for consideration. The parties agree that based on amended documents that support the DA under appeal, the contentions that specifically relate to cll 87, 101, 102 and 104 of the SEPP Infrastructure are resolved.
The site is located within the R2 Low Density Residential Zone, as described in the WLEP. The proposed development is permissible in the zone. The parties agree that the relevant provisions of the WLEP are addressed to their satisfaction by the supporting documents and amended plans to the DA under appeal. The parties agree that the objectives of the zone are satisfied.
The proposed development does however exceed the numeric requirement of cl 4.3 (height standard) of the WLEP. All other relevant numeric development standards are satisfied.
It is accepted by the parties that a cl 4.6 written request for variation of the height standard is required to be considered by the Court to grant consent to the DA, pursuant to cl 4.6 of the WLEP.
The written request for (height) variation explains that the height of the proposed development exceeds by a maximum 0.72m the height standard of 9m, as specified in cl 4.3 of the WLEP. This exceedance in height occurs primarily in portions of the Building 3, in the roof form and the lift overrun.
The cl 4.6 (height) written request explains that the exceedance in the height standard does not result in a development that is out of character with the local area and is not perceived adversely from the streetscape. The proposed development responds to the existing and proposed seniors living development on the site, and the sloping topography.
According to the written request, there are no adverse impacts from visual bulk, view loss, solar access or privacy as a result of the non-compliance with the (height) development standard for the proposed development. The proposed development is not inconsistent with the zone objectives or relevant development standard. The portions of the non-compliant building form are not readily discernible in the context of the site.
The proposed height of the development satisfies the objectives of the zone and the height standard. As the proposed development is in character with the local area, results in no adverse amenity impacts and satisfies the relevant height objectives, compliance with the height standard would be both unreasonable and unnecessary.
The written request considers that a variation of the height development standard, pursuant to cl 4.3 of the WLEP is therefore satisfied, and flexibility of the standard is justified.
Having reviewed the (cl 4.6) written request, I agree that the written request for variation of the height standard addresses the requirements of cl 4.6(3) of the WLEP by describing sufficient environmental planning grounds to justify the development standard exceedance, and that strict compliance would be both unreasonable and unnecessary for the proposed development on this site. Therefore, cl 4.6(4)(a)(i) of the WLEP is satisfied.
The proposed development as described to the Court is consistent with the objectives of the zone (cl 2.3 for R2 zone) and the height (cl 4.3) standard, as established in the WLEP. The breach is limited to portions of the roof that will not cause undue concern to surrounding residents or those on the site. The height non-compliance does not result in adverse impact to the residents of the proposed development, adjoining properties or the character of the local area. The proposed development is therefore in the public interest, satisfying cl 4.6(4)(a)(ii).
I accept the cl 4.6’s written explanation that there is no significant consequence to State or Regional environmental planning matters as a result of varying the development standard in this instance. Therefore, variation of the height development standard is not inconsistent with cll 4.6(4)(b) or (5) of the EPA Act.
I am satisfied that the requirements of cl 4.6 of the WLEP have been addressed and that a variation in the height standard, as provided in cl 4.3, should be granted.
Based on the amended plans and supporting documents to the DA, the contentions that relate to the controls as specified in the WDCP are achieved to the satisfaction of the parties. The parties agree that the amended plans address any potential amenity impacts that would warrant refusal of the DA.
The parties agree that the requirements of the WDCP are complied with, based on the amended plans, supporting documents to the DA and conditions of consent. The proposed development was publicly notified in accordance with the WDCP. During the initial notification period, no submissions were received by Council.
Based on the amended plans and supporting documents to the DA including a (cl 4.6) written request for variation of the height development standard, the contentions as expressed in the Statement of Facts and Contentions are explained to the Court as resolved to the satisfaction of the parties.
I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2019/1107 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act.
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.
The Court orders that:

The cl 4.6 written request for variation of the height development standard, dated 27 August 2020 is upheld.

The appeal is upheld.

Development Application No. DA 2019/1107 for the demolition of existing buildings, remediation works, earthworks, vegetation removal and construction of two (2) residential flat buildings containing self-care seniors housing apartments (one (1) x two (2) storey and (1) x three (3) storey residential flat building with a total of 60 self-contained dwellings and with basement parking for 21 spaces and a community building, with at–grade external car parking for 15 vehicles, together with associated stormwater management and landscaping works on 4 Lindsay Evans Place, Dapto, is approved subject to the conditions of consent at Annexure "A".

…………………………

Sarah Bish

Commissioner of the Court

Annexure A (2362379, pdf)

**********

Amendments

14 September 2020 - Pursuant to UCPR 36.16(3B) of the Uniform Civil Procedure Rules 2005, by the Court’s own motion, at the request of the parties in making the agreement, amend condition 3 of Annexure A to include the document entitled 'Modifications to be required as a condition of consent on DA-2019/1107' within Annexure A of the conditions of consent.

Decision last updated: 14 September 2020

Medium Neutral Citation:	Anglican Community Services, trading as Anglicare v Wollongong City Council [2020] NSWLEC 1410
Hearing dates:	Conciliation conference on 24 August 2020
Date of orders:	04 September 2020
Decision date:	04 September 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders that: (1) The cl 4.6 written request for variation of the height development standard, dated 27 August 2020 is upheld. (2) The appeal is upheld. (3) Development Application No. DA 2019/1107 for the demolition of existing buildings, remediation works, earthworks, vegetation removal and construction of two (2) residential flat buildings containing self-care seniors housing apartments (one (1) x two (2) storey and (1) x three (3) storey residential flat building with a total of 60 self-contained dwellings and with basement parking for 21 spaces and a community building, with at–grade external car parking for 15 vehicles, together with associated stormwater management and landscaping works on 4 Lindsay Evans Place, Dapto, is approved subject to the conditions of consent at Annexure "A".
Catchwords:	DEVELOPMENT APPLICATION – seniors living –amenity – biodiversity conservation for endangered ecological communities – bushfire prone land – height standard non-compliance – cl 4.6 written variation request – conciliation conference – agreement between the parties – orders
Legislation Cited:	Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Rural Fires Act 1997 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Wollongong Local Environmental Plan 2009
Texts Cited:	Apartment Design Guide Wollongong Development Control Plan 2009
Category:	Principal judgment
Parties:	Anglican Community Services, trading as Anglicare (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: R Pleming (Solicitor) (Applicant) P Hudson (Solicitor) (Respondent) Solicitors: Allens (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/399086
Publication restriction:	No