Artro Management Pty Ltd v Wollongong City Council

[2019] NSWLEC 1436

Land and Environment Court

New South Wales

Medium Neutral Citation:	Artro Management Pty Ltd v Wollongong City Council [2019] NSWLEC 1436
Hearing dates:	Conciliation conference on 22 May 2019; 4 July 2019
Date of orders:	13 September 2019
Decision date:	13 September 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $15,000 payable within 28 days from the date of the Orders. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No. DA-2017/1577 seeking consent for demolition of existing structures, construction of a mixed use development comprising 30 residential apartments, 2 LEP permitted retail premises / business premises, associated storage and car parking, the provision of utility services and stormwater drainage infrastructure, landscaping and earthworks on the land at 27 Flinders Street, Wollongong NSW, subject to the conditions of consent annexed hereto and marked “A.”
Catchwords:	DEVELOPMENT APPLICATION – mixed use development - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Wollongong Local Environmental Plan 2009
Category:	Principal judgment
Parties:	Artro Management Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) J Reilly (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicant) Wollongong City Council (Respondent)
File Number(s):	2018/302129
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and the construction of a mixed use development comprising shop top housing and business premises and associated storage, car parking, utility services, landscaping and earthworks at 27 Flinders Street, Wollongong. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached following a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 22 May and 4 July 2019. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties is met, for the following reasons:

• The development works are for the purposes of “shop top housing” and “business premises”, which are permissible uses in the B6 Enterprise Zone pursuant to the Wollongong Local Environmental Plan 2009 (“WLEP 2009”).

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 16m, pursuant to cl 4.3 of the WLEP 2009. The proposed maximum height of 18.154m represents a contravention of 2.154m above the numerical standard. The contravention is confined to the lift overrun and a small portion of the covered pedestrian stair access to the rooftop terrace above the eastern building at the street frontage, and the lift overrun and part of the front units and parapet for the western building. I am satisfied that the written request by Cardno dated 30 July 2019, lodged pursuant to cl 4.6 of the WLEP 2009, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach is caused by the sloping topography and facilitates positive aspects of the design of the building, which then avoids the poor design outcome that would result from stepping the building to match the 16m height limit. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard. Further, I am satisfied, based on the contents of the request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. A report prepared by Environmental Investigation Services dated 15 September 2017 was submitted with the development application and accompanied the Class 1 Application, and did not identify any contamination issues.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I am not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $15,000 payable within 28 days from the date of the Orders.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA-2017/1577 seeking consent for demolition of existing structures, construction of a mixed use development comprising 30 residential apartments, 2 LEP permitted retail premises / business premises, associated storage and car parking, the provision of utility services and stormwater drainage infrastructure, landscaping and earthworks on the land at 27 Flinders Street, Wollongong NSW, subject to the conditions of consent annexed hereto and marked “A.”

……………………………

J Gray

Commissioner of the Court

Plans (11.5 MB, pdf)

Annexure A (119 KB, pdf)

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Decision last updated: 13 September 2019