Blaq Property Fund No. 22 Pty Ltd v Wollongong City Council

[2025] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blaq Property Fund No. 22 Pty Ltd v Wollongong City Council [2025] NSWLEC 1073

Hearing dates:

Conciliation Conference held 24 January 2025

Date of orders:

11 February 2025

Decision date:

11 February 2025

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application in the amount of $1,920, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) Development Application DA-2024/259, as amended, for alterations and additions to the shop-top housing development approved by Development Consent DA-2022/169, to provide for an additional 41 residential units across both towers (within three (3) additional storeys), 47 additional carparking spaces, inclusion of an affordable housing component comprising 27 units and subdivision, at 32 - 40 Flinders Street Wollongong is approved, subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to approved shop top housing - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Roads Act 1993, s 9

Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015

Environmental Planning and Assessment Regulation 2021, s 29, 38

State and Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.120, 2.122

State Environmental Planning Policy (Housing) 2021, s 16, 19, 21, 147, Ch 4

State Environmental Planning Policy (Resilience and Hazards) 2021 ss 2.10, 2.11, 4.6, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

Wollongong Local Environmental Plan 2009, cll 2.5, 2.6, 4.3, 4.4A, 4.5, 4.6, 5.1, 5.1A, 5.21, 7.1, 7.5, 7.18, 8.1, 8.4

Cases Cited:

Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7

Texts Cited:

Apartment Design Guide 2015

Acid Sulfate Soils Manual 1998

Category:

Principal judgment

Parties:

Blaq Property Fund No. 22 Pty Ltd ACN 645 160 354 (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Norman (Solicitor) (Applicant)
E Kilpatrick (Solicitor) (Respondent)

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

File Number(s):

2024/200436

Publication restriction:

Nil

Judgment

1. COMMISSIONER: 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 the refusal of Development Application DA-2024/259 seeking consent for alterations and additions to an approved shop top housing development (Proposed Development) at 36 Flinders Street, Wollongong legally described as Lot 2 in DP 1262241 (the Site).

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 24 January 2025. I presided over the conciliation conference. The parties had on two earlier occasions, 17 September 2024 and then again on 22 November 2024, attended conciliation conferences both of which were terminated. The Applicant has since made amendments to the proposed design of the development and provided additional information and the parties have 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.

3. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

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

5. 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 provisions of the Wollongong Local Environmental Plan 2009 (WLEP), the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP), State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) and State Environmental Planning Policy (Housing) 2021 (Housing SEPP). The parties explained how the jurisdictional prerequisites have been satisfied.

6. By way of background, development consent for DA-2022/169 was granted by the Southern Regional Planning Panel on 23 October 2023 for demolition of existing structures and construction of a double tower nine storey shop top housing development comprising basement carparking, 114 residential units and 158 parking spaces.

7. The Proposed Development will result in the addition of 41 residential apartments within 3 additional levels (providing a proposed total of 155 residential units within two 12 storey towers), an additional 47 car parking spaces (and associated basement layout alterations) and a change to the apartment mix to include 27 units which will be managed by a Registered Community Housing Provider as affordable housing for at least 15 years.

8. The Development Application was notified to surrounding properties for a period of 14 days from 22 April 2024 to 6 May 2024 and only one submission was received.

9. The main amendments made to the Proposed Development include the following:

1. remove communal open spaces from upper levels of the building;

2. reconfigure apartment layouts and removal of bedroom balconies on levels 10 to 12 to increase setbacks and improve visual privacy to neighbouring sites;

3. reduction in the use of glazed materials and amendments to façade treatments including the use of pre-finished panels;

4. reconfiguration of basement layout to accommodate tandem parking, relocation of car wash, and revised bicycle storage;

5. overall increase in the number of units from 152 to 155; and

6. subdivision of the SP2 zoned land to be dedicated as a public road.

10. The parties are satisfied that the Proposed Development now satisfactorily addresses the Respondent’s contentions in the Statement of Facts and Contentions filed 28 June 2024 (SOFAC) together with agreed conditions of consent.

11. The Development Application was lodged by Urban Link Architects Pty Ltd on behalf of Blaq Property Fund No.21 Pty Ltd, Blaq Property Fund No.22 Pty Ltd and Zeait Family Pty Ltd, the registered owners of the Site in 1/3 shares each as tenants in common: Class 1 Application filed 30 May 2024 at Tabs 1 and 2.

12. The Site is predominantly zoned E3 Productivity Support pursuant to the WLEP. A small portion of the Site along Flinders Street is zoned SP2 Infrastructure classified road. The SP2 zoned land is proposed to be subdivided and dedicated as a public road and no works are proposed on this portion of the Site: cl 5.1A, WLEP.

13. In accordance with cl 2.6 of the WLEP, the Proposed Development seeks consent for the subdivision of the SP2 zoned land, as identified in the Plan of Subdivision of Lot 2 in DP 1262241 Plan No. 9095-‘20M (COMP)’ Issue B prepared by Michael J Dark filed 24 January 2025.

14. Pursuant to s 9 of the Roads Act 1993, “A person may open a public road by causing a plan of subdivision or other plan that bears a statement of intention to dedicate specified land as a public road to be registered in the office of the Registrar-General.” Accordingly, cl 5.1 of the WLEP is not relied on for the dedication of the SP2 zoned land.

15. The Plan of Subdivision includes a note “Lot 2 is intended to be dedicated as a public road reserved pursuant to s 9 of the Roads Act 1993” and Conditions 1, 3 and 7 relate to the dedication of the SP2 zoned land.

16. ‘Shop top housing’ is a prohibited use in the E3 zone, however it is an additional permitted use on the Site pursuant to cl 2.5 of the WLEP. The Site is identified as No. 34 on the additional permitted uses map and ‘shop top housing’ is nominated as an additional permitted use on the site pursuant to cl 34 of Schedule 1.

17. The site has a frontage of approximately 91m to Flinders Street, being greater than the minimum street frontage required by cl 8.4 of the WLEP.

18. The Site is mapped as being within both the ‘Coastal Environment Area’ for the purposes of s 2.10 and the ‘Coastal Use Area’ for the purposes of s 2.11 of the Resilience and Hazards SEPP. Chapter 2 of the Resilience and Hazards SEPP deals with coastal management and includes jurisdictional prerequisites to be satisfied.

19. The Statement of Environmental Effects (SEE) prepared by MMJ Town Planning and Advisory dated March 2024 filed with the Class 1 Application at Tab 7, provides an assessment against the matters in s 2.10 and 2.11 of the Resilience and Hazards SEPP at pp 22-23. The SEE remains relevant to the Proposed Development because the amendments made do not result in a change to the assessment under the Resilience and Hazards SEPP.

20. Accordingly, the Court is satisfied that the Proposed Development is designed, sited and will be managed to avoid an adverse impact referred to in s 2.10(1) and s 2.11(1)(a) of the Resilience and Hazards SEPP for the reasons set out in the SEE, namely:

“The original proposal under Development Consent DA-2022/169 was assessed against the requirements of this Clause, and the proposal was not considered likely to have an adverse impact on the biophysical, hydrological or ecological environments, natural coastal processes, water quality, public open space, Aboriginal cultural heritage, or the use of the surf zone. The proposed alterations and additions will not result in any adverse impacts outlined in subclauses [of 2.10(1)]. The development has been designed and sited to above any adverse impact in this regard. It will also be appropriately managed to ensure that the proposal is acceptable with respect to the afore-mentioned provisions.

[…] the nature of the proposed alterations and additions will not result in any adverse impacts outlined in sub-clauses [s2.11(1)] (a) to (c). The visual amenity and scenic quality of the surrounding environment will be maintained consistent with the approved Development Consent DA-2022/169.”

21. The existing development consent for shop top housing (DA2022/169), requires the undertaking of certain remediation activities on the Site pursuant to s 4.6 of the Resilience and Hazards SEPP. The agreed conditions do not alter any of these Site remediation obligations. While the Proposed Development seeks consent for excavation to the same depth as the existing approved basement (comprising 2 levels), an enlargement of the basement extent (further toward the northern and western boundaries of the basement) on level 2 to fit an additional 47 car spaces is proposed as depicted in Comparison Drawing Basement 02 DA-1608, Rev X dated 19 August 2024. I have had regard to a letter prepared by Aargus dated 23 October 2024 confirming that the “Based on the updated drawings, the Conclusions and Recommendations of the Aargus Detailed Site Investigation (Ref: ES8407, dated 14 December 2021) can still be relied upon” and that “the site will be considered to be rendered suitable subject to the completion of a Remedial Action Plan (and after remediation and validation), for the proposed development.”

22. I am satisfied that the land will be remediated before the land is used for the purpose of shop top housing and that there is no change to the proposed use by the Proposed Development.

23. The Site has frontage to and vehicular access from a classified road, namely Flinders Street, also referred to as Princess Highway. Accordingly, satisfaction of the following provisions of the State and Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) is required:

1. Section 2.119 - Development with frontage to classified road;

2. Section 2.120 - Impact of road noise or vibration on non-road development; and

3. Section 2.122 - Traffic-generating development.

24. The Applicant relies on the following documentation in support of the Proposed Development addressing the matters raised in the above sections:

1. Traffic and Parking Impact Assessment prepared by ATB Consulting Engineering Pty Ltd dated 13 September 2024; and

2. Traffic Noise - Acoustic insulation between floors and walls and Environmental Impact Assessment prepared by ANAVS - Acoustic Noise and Vibration Solutions Pty Ltd dated 8 October 2024 (Acoustic Assessment Report).

25. Having had regard to these documents and the architectural drawings, I am satisfied, as required by s 2.119 of the Transport and Infrastructure SEPP, as regards to the Site having frontage to the classified road known as Finders Street as follows:

1. The Site does not have any practicable or safe alternative means of providing vehicular access other than Flinders Street. The proposed development maintains the same location of the existing vehicular access from Flinders Street as was approved by the existing development consent (refer to Ground floor plan DA-0101): s 2.119(2)(a), Transport and Infrastructure SEPP.

2. The safety, efficiency and ongoing operation of Flinders Street will not be adversely affected by the development as a result of:

1. The design of the vehicular access to the land, because the driveway is maintained in the existing approved location and is located as far away as possible from the intersection with Gipps Street;

2. The emission of smoke or dust from the development as these are not likely impacts associated with a shop top housing development, and are matters that can and will be mitigated during the demolition and construction of the development in accordance with condition 50 of DA-2022/169 requiring the preparation of a Construction Site Management Plan; and

3. The nature, volume or frequency of vehicles using the classified road to gain access to the land because, as outlined in section 5 of the Traffic and Parking Assessment the traffic generation of the development will not result in an adverse impact on the capacity of the surrounding road network or the Classified Road, being Flinders Street. The design of the development ensures that vehicles can enter and exit the Site at the same time and appropriate sight lines are provided for drivers to enter and exit safely and efficiently as depicted in the Ground floor plan DA-0101: s 2.119(2)(b), Transport and Infrastructure SEPP.

3. The Proposed Development is designed to mitigate any potential adverse impacts associated with noise or emissions through the provision of sealed acoustic glazing treatments, that achieve the internal acoustic levels prescribed by s 2.120 of the Transport SEPP in accordance with the Acoustic Assessment Report: s 2.119(2)(c), Transport and Infrastructure SEPP.

26. The Acoustic Assessment provides recommendations for glazing for windows, sliders, doors, external walls, doors and roof to ensure that the development meets the internal acoustic requirements set out in s 2.120(3) of the Transport and Infrastructure SEPP. Attachment 1 to the agreed conditions of consent amends Condition 91 of DA-2022/169 requiring implementation of all the recommendations of the Acoustic Assessment Report. Accordingly, I am satisfied that the Proposed Development has been designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Acoustic Assessment Report that will ensure a suitable degree of amenity for residents and other occupants of the proposed development, including compliance with the LAeq levels in s 2.120(3), Transport and Infrastructure SEPP.

27. As the Proposed Development is classified as traffic generating development pursuant to Schedule 3 of the Transport and Infrastructure SEPP, I am satisfied that pursuant to s 2.122(4)(a), written notice of the Development Application was provided to TfNSW by the Respondent on 19 April 2024 and included as Attachment 1, to the conditions at Annexure A, is a letter dated 13 May 2024 from TfNSW. The Respondent is required to provide TfNSW with a copy of the determination within 7 days of the date of the determination: s 2.122(5), Transport and Infrastructure SEPP.

28. Similarly, as development is proposed in close proximity to electricity transmission infrastructure, I am satisfied that pursuant to s 2.48(2) of the Transport and Infrastructure SEPP, the Development Application was referred on 19 April 2024 to Endeavour Energy, the electricity supply authority for the area in which the development is to be carried out.

29. The Development Application is subject to the in-fill affordable housing provisions under the Housing SEPP set out in Ch 2, Pt 2, Div 1.

30. The Site is mapped as being within the Wollongong City Centre (cl 8.1 of the WLEP) and pursuant to cl 4.4A(4) of the WLEP, the maximum FSR is 2.53:1. Pursuant to s 16(1) of the Housing SEPP the Proposed Development is eligible for a 30% bonus to the FSR Control, raising it to 3.29:1. The SP2 zoned portion of the Site has been excluded from the site area for the purposes of calculating the FSR for the development, as required by cl 4.5(4)(a) of WLEP 2009. The Proposed Development has an FSR of 3.34:1, which exceeds the FSR standard under s 16 of the Housing SEPP by 1.7% (264.84m²) (refer to DA 1490 Rev ZD).

31. The Applicant relies on a written request to justify the contravention of the development standard pursuant to cl 4.6 of the WLEP prepared by MMJ Town Planning and Advisory dated January 2025 (Written Request).

32. The Written Request demonstrates that:

1. The clause 4.6 request addresses the FSR standard under clause 4.4A of the WLEP and section 16(1) of the Housing SEPP.

2. Compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (clause 4.6(3)(a)) for the reasons set out in the clause 4.6 request at pages 9-12 of the request given that the objectives of the standard are achieved notwithstanding the non-compliance, for reasons including that the exceedance is minor and arises from the addition of floor area to voids, and therefore does not materially alter the correlation between the size of the site and size of the building, and, relevant to s 16 of the Housing SEPP, the development directly facilitates the delivery of affordable housing.

3. That there are sufficient environmental planning grounds to justify contravening the development standard for the reasons set out in the clause 4.6 request (pages 12-13) (clause 4.6(3)(b) of the WLEP) including:

1. The numerical non-compliance with s 16(1) is minor and does not result in any significant adverse impacts on amenity or a building envelope that would be perceived to be non-compliant with the standard (Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at [34]);

2. The variation is the result of the constraints imposed by the existing approved building on the site and the development of a design that achieves design excellence and high quality communal open space;

3. The variation directly facilitates the delivery of affordable housing on the site, being a strategic inner-city location close to services and amenities;

4. The variation is minor and maintains the existing approved character of the public domain and results in minimal visual impact;

5. The variation facilitates the optimised use of a strategic site in an inner-city area that is located in close proximity to public transport and services;

6. The variation facilitates an improved contribution to the beneficial social and economic outcomes on the site; and

1. The development, despite the exceedance of the FSR standard achieves the objectives of the EPA Act.

33. The changes to cl 4.6 in the Standard Instrument that commenced on 1 November 2023 apply to the Proposed Development as the Development Application was lodged after 1 November 2023. As such the public interest test under clause 4.6 does not apply.

34. The Site is not exempt from the operation of clause 4.6 by virtue of the statutory exclusions listed under cl 4.6(8) of the WLEP.

35. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in s 16 of the Housing SEPP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP.

36. As the Proposed Development seeks consent for the 30% bonus FSR, addressed above, of which 15% (2,361m²) is provided as affordable housing as demonstrated in drawing DA 1490 Revision ZD. I am satisfied that s 16(2) of the Housing SEPP, requiring a minimum affordable housing component of at least 10%, to be satisfied.

37. The Proposed Development seeks consent for shop top housing and is eligible for additional 30% building height under s 16(3) of the Housing SEPP, being an additional 9.6m on top of the mapped 32m height of building development standard pursuant to cl 4.3 of the WLEP, resulting in a maximum height of building development standard for the Site at 41.6m. The Proposed Development complies with the maximum height control of 41.6m, with a proposed height of 41.55m as demonstrated in the Height Plane Diagram drawing DA-1420 Rev X.

38. A number of non-discretionary development standards in relation to residential development is set out in s 19(2) of the Housing SEPP and apply to the Proposed Development. The Proposed Development complies with the non-discretionary development standards as follows:

1. There is a minimum site are of 4,769m², exceeding the requirement of 450m²: s 19(2)(a);

2. A landscaped area of 1,678m² (35% of the site) exceeding the lesser requirement of (30% refer to Compliance Part 2 of 2 Communal Open Space and Deep Soil DA-1440 Rev X): s 19(2)(b);

3. Pursuant to s 19(3) subsections 19(2)(c)-(d) do not apply because the Proposed Development is development to which Ch 4 – Design of residential apartment development of the Housing SEPP applies.

4. 23 car parking spaces for affordable housing units and 165 parking spaces for non-affordable units are provided, exceeding the requirement (refer to DA-1490 Rev ZD): s 19(2)(e)-(f); and

5. provides all units in accordance with the minimum ADG internal area requirements (refer to DA-1490 Rev ZD): s 19(2)(g).

39. The Court is satisfied that conditions 10, 11 and 12 require a minimum of 27 dwellings within the development to be managed as affordable housing for a period of at least 15 years: s 21(1)(a), Housing SEPP.

40. Condition 12 implements the requirements of the legislation and requires the appointment of a registered Community Housing Provider (CHP) specifically for the management of the affordable housing component; s 21(1)(b), Housing SEPP. In that regard, the Applicant has nominated the Housing Trust as the Registered CHP that will manage the affordable housing component of the development, and the Housing Trust has confirmed consent to its nomination as outlined in the letter provided to the Court dated 29 October 2024.

41. Section 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires, if a development application that relates to residential apartment development is made on or after the commencement of the Environmental Planning and Assessment Amendment (Residential Apartment Development) Regulation 2015, that the development application must be accompanied by a statement by a qualified designer. The EPA Regulation further provides that the statement by the qualified designer must, among other things, provide an explanation that verifies how the development addresses how the design quality principles are achieved and demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved: ss 29(2)(b)(i) and (ii), EPA Regulation.

42. To satisfy s 29 of the EPA Regulation, as well as in accordance with the terms of s 147 of the Housing SEPP and cl 7.18 of the WLEP, the Applicant relies on a design verification statement prepared by Georges Jreije of Urban Link Architects dated 8 October 2024.

43. Pursuant to clause 7.18(3) of the WLEP development consent must not be granted unless in the opinion of the consent authority, the proposed development exhibits design excellence. The design review panel reviewed the design of the Proposed Development on 10 May 2024: cl 7.18(5), WLEP.

44. The Court is satisfied that the Proposed Development achieves design excellence, having regard to the matters outlined in clause 7.18(4) of the WLEP, as addressed in the SEE at pp 45-46, for the following reasons which I reproduce below:

1. The building will use a high standard of architectural design, materials and detailing that is appropriate to the use and location of the building;

2. The form and external appearance of the building will improve the quality and amenity of the public domain;

3. The development does not detrimentally impact a view corridor or identified overshadowing areas;

4. The development addresses:

1. the suitability of the site for development and the existing and proposed uses and use mix as the Site has an existing approval for a shop top housing development with an approved unit mix;

2. heritage issues, streetscape context and tower location as the DA relies on an existing approved building;

3. the bulk massing and modulation of the existing approved buildings on the site through:

1. the reduction in the extent of glazing to the building to provide vertical masonry elements that define the tower form (refer to eastern and western elevations on DA-0202);

2. maintaining the building podium and base element;

3. maintaining a solid materiality treatment to the upper 2 levels to provide a vertical termination to the building;

4. continuation of the privacy louvres to the eastern and western façade to provide a fine grained vertical element to the towers;

4. buildings and street frontage heights through maintaining the podium design, treatment and uses to maintain the approved interface with the street;

5. environmental impacts through the provision of an amended BASIX certificate and overshadowing through modelling of adjacent development (refer DA-1435-1440);

6. achievement of ecologically sustainable development principles through the location of additional housing close to public transport, schools and other community infrastructure and through the provision of affordable housing; and

7. pedestrian, cycle, vehicular and service access circulation and requirements as well as impacts and improvements to the public domain through consideration of the existing approved development on the site.

45. In compliance with s 2.1 of the State Environmental Planning Policy (Sustainable Buildings) 2022, the Applicant has prepared and provided an amended BASIX Certificate.

46. The Site is identified as being within a flood prone area. The consent authority must not grant consent to a development unless it is satisfied of the matters in clause 5.21(2) of the WLEP.

47. The Court is satisfied that the Proposed Development does not result in any change to the approved flood management measures of the building already approved on the Site. In this regard the following key levels are maintained in the DA (as were approved under DA-2022/169):

1. The ground level of public domain at RL8.90 in the western portion of the site adjacent to Flinders Street and a level of RL8.680 at the top of the stairs leading into the main building lobby (eastern portion of the site fronting Flinders Street); and

2. A height of RL8.140 at the south-eastern corner of the driveway and a height of RL8.376 at the crest of the driveway.

48. In this regard, the Proposed Development does not result in any change to the approved public domain levels that have already been designed to comply with the flood planning level: SEE, p 44. Accordingly, the parties are satisfied, and the Court is satisfied, pursuant to cl 5.21(2)(a)-(e) of the WLEP that the development:

1. remains compatible with the flood function and behaviour on the land; and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood; and

4. incorporates appropriate measures to manage risk to life in the event of a flood; and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of riverbanks or watercourses.

49. As outlined in the SEE at p 44, the Site has existing electricity, water and sewage. The existing consent on the site (DA-2022/169) incorporated augmentation works to support the approved development. The consent authority can be satisfied that water, electricity and infrastructure for the management of sewage are provided for on Site as required by the terms of cl 7.1 of the WLEP.

50. The Site is mapped as containing class 4 and 5 Acid Sulfate Soils (ASS) pursuant to cl 7.5 of the WLEP. The Proposed Development includes the expansion of basement level 2 further to the north and the relocation of the Sydney Water Sewer line within the northern portion of the site which is mapped as class 4 ASS. An Acid Sulfate Soils Management Plan (ASSMP) dated 30 October 2024 has been prepared by Environmental Consulting Services for the Proposed Development in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority, thus satisfying the requirement of cl 7.5(3) of the WLEP. The ASSMP provides an outline for on site testing, treatment and safe storage of any acid sulfate soils excavated on site as part of the proposed works. Condition 17 at Annexure A requires all recommendations contained in section 5 of the ASSMP to be implemented and followed throughout the excavation and construction phases of the development.

51. 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. I adopt the reasons given by the parties as I have set out in this judgment.

52. 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:

53. The Court notes that:

Wollongong Council as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA-2024/259 to include the documents listed below:

Drawing	Issue	Plan Title	Dated
Amended Architectural Plans
DA-004	X	Site Plan	19.8.2024
DA-0101	Y	Ground	19.08.2024
DA-0102	x	Level 01	19.08.2024
DA-0103	ZA	Level 02-07	20.09.2024
DA-0104	ZA	Level 8	20.09.2024
DA-0105	ZA	Level 09-10	20.09.2024
DA-0106	ZA	Level 11	20.09.2024
DA-0107	X	Roof	19.08.2024
DA-0108	Y	Basement 01	19.08.2024
DA-0109	X	Basement 02	19.08.2024
DA-0201	ZA	North & South Elevation	20.09.2024
DA-0202	ZA	East and West Elevation	20.09.2024
DA-0203	X	Flinders St Elevation	19.08.2024
DA-0301	X	SECTON AA & BB	19.08.2024
DA- 302	X	SECTON CC & DD	19.08.2024
DA-0901	ZA	External Finishes	20.09.2024
DA-1410	ZC	GFA Diagrams	19.08.2024
DA-1411	X	Affordable GFA Diagrams	19.08.2024
DA-1420	X	Height Plane Diagram – 3D View	19.08.2024
DA-1421	X	Height Plane Diagram – Plan View	19.08.2024
DA-1430	Y	Existing Shadow Diagrams 21 June 9am-3pm	19.08.2024
DA-1431	Y	Future Shadow Diagrams 21 June 9am-3pm
DA-1435	ZA	Sun Eye Diagrams Solar Schedule (Existing)	20.09.2024
DA-1436	ZA	Sun Eye Diagrams 21 June 9am-12pm (Existing)	20.09.2024
DA-1437	ZA	Sun Eye Diagrams 21 June 1pm-3pm (Existing)	20.09.2024
DA-1438	ZA	Sun Eye Diagrams Solar Schedule (Future)	20.09.2024
DA-1439	ZA	Sun Eye Diagrams 21 June 9am-12pm (Future)	20.09.2024
DA-1440	ZA	Sun Eye Diagrams 21 June 1pm-3pm (Future)	20.09.2024
DA-1441	ZA	Sun Eye Diagrams solar schedule (Future with Neighbour 30%)	20.09.2024
DA-1442	ZA	Sun Eye Diagrams 21 June 9am-12pm (Future with Neighbour 30%)	20.09.2024
DA-1443	ZA	Sun Eye Diagrams 21 June 1pm-3pm (Future with Neighbour 30%)	20.09.2024
DA-1440	X	Communal Open Space and Deep Soil	19.08.2024
DA-1441	X	Communal Open Space Direct Solar Access 21 June 9am-3pm	19.08.2024
DA-1460	X	Adaptable and Liveable Units	19.08.2024
DA-1480	X	46 Flinders Street	19.08.2024
DA-1481	X	46 Flinders Street Solar Schedule	19.08.2024
DA-1482	X	28-30 Flinders Street	19.08.2024
DA-1483	Z	25 Flinders Street
DA-1490	ZD	Calculations	21.01.2025
DA-1601	X	Comparison Drawing - Ground	19.08.2024
DA-1602	X	Comparison Drawing – Level 01	19.08.2024
DA-1603	X	Comparison Drawing – Level 02	19.08.2024
DA-1604	X	Comparison Drawing – Level 08-10	19.08.2024
DA-1605	X	Comparison Drawing – Level 11	19.08.2024
DA-1606	X	Comparison Drawing – Roof	19.08.2024
DA-1607	X	Comparison Drawing – Basement 01	19.08.2024
DA-1608	X	Comparison Drawing – Level 02	19.08.2024
S0901	01	Sewer Diversion Stormwater Infrastructure	31.01.2024
Amended Landscape Plan
102	K	Landscape Plan – Ground Floor	12.09.2024
Subdivision Plan
095-'20M (COMP)	-	Plan of Subdivision of Lot 2 In DP 1262241	18.09.2024
Amended Reports
Schedule of Amendments prepared by Urban Link Architects			8 October 2024
Planning Statement Outlining Proposed Subdivision prepared by MMJ Town Planning and Advisory			25 September 2024
Clause 4.6 Exception to Development Standard Request to vary FSR Standard prepared by MMJ Town Planning and Advisory			January 2025
Amended Design Verification Statement and ADG Compliance Table prepared by Urban link Architects			8 October 2024
Acoustic Assessment Statement prepared by Anavs-Acoustic Noise & Vibration Solutions Pty Ltd			8 October 2024
Amended Traffic Assessment and Swept Path diagrams prepared by ATB Consulting Engineers			13 September 2024
Geotechnical Assessment for existing approved building prepared by JK Geotechnics			20 November 2017
Acid Sulfate Soils Management Plan prepared by Environmental Consulting Services			30 October 2024
Community Housing Provider Nomination Letter prepared by Housing Trust			29 October 2024
Statement on compliance with remediation works prepared by AArgus			23 October 2024
BASIX Certificate 1767950M – L9 to L11 prepared by Manali Rana			9 October 2024
Amended BASIX Certificate 1259830M_6 prepared by EPS			11 September 2024
BASIX Stamped Plans – Nationwide House Energy Rating Scheme			22 October 2024
Sydney Water Approval Documents			12 September 2024

Orders:

54. The Court orders:

1. The appeal is upheld.

2. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application in the amount of $1,920, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. Development Application DA-2024/259, as amended, for alterations and additions to the shop-top housing development approved by Development Consent DA-2022/169, to provide for an additional 41 residential units across both towers (within three (3) additional storeys), 47 additional carparking spaces, inclusion of an affordable housing component comprising 27 units and subdivision, at 32-40 Flinders Street Wollongong is approved, subject to the conditions at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

Architectural Plans

Plan of Subdivision

**********

Decision last updated: 11 February 2025