Blaq Property Fund No.28 Pty Ltd v Wollongong City Council

[2025] NSWLEC 1577

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blaq Property Fund No.28 Pty Ltd v Wollongong City Council [2025] NSWLEC 1577

Hearing dates:

7-9 July 2025

Date of orders:

14 August 2025

Decision date:

14 August 2025

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act1979 (NSW).

(2) The appeal is dismissed.

(3) Development application DA-2024/476 seeking consent for alterations and additions to approved shop top housing development comprising an additional 16 residential apartments, from 97 to 113, an additional three (3) carparking spaces, from 122 to 125, an additional four (4) levels and change to the unit mix to incorporate 18 affordable units at 266 Keira Street, Wollongong is refused.

(4) All exhibits are returned except for Exhibits A, B, C, E and 12.

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to shop top housing development — height standard is exceeded — whether development exhibits design excellence

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 39

Environmental Planning and Assessment Regulation 2021 (NSW), ss 29, 38

State Environmental Planning Policy (Housing) 2021, ss 15A, 16, 147, Sch 9

Wollongong Local Environmental Plan 2009, cll 4.3, 4.6, 7.18, 7.20, 8.3

Cases Cited:

Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582

Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 1017

Texts Cited:

Wollongong City Centre Urban Design Framework

‘In-fill affordable housing’, published by the Department of Planning December 2023

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Blaq Property Fund No.28 Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
N Eastman SC (Respondent)

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

File Number(s):

2024/299627

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: In November 2021, the Court granted consent for the demolition of existing structures, and construction of a mixed use development, including ground floor commercial and retail and 107 residential units on a land located to the west of MacCabe Park in Wollongong. (The Original Consent)

2. In April 2024, the Council approved Modification Application DA-2019/784/A for what is described as various internal reconfigurations, including to the lift, adjustment in basement levels to accommodate shoring, a reduction in the number of units, adjustments to floor heights and gross floor area and external colours (Modification A).

3. The development was further modified on 5 August 2024 by modification application DA-2019/748/B. The consent so modified is the development the subject of consent on which construction proceeds today.

4. On 1 July 2024, the applicant in these proceedings, Blaq Property Fund No.28 Pty Ltd lodged development application DA-2024/476 with Wollongong City Council (the Council) seeking consent for alterations and additions to approved shop top housing development comprising an additional 16 residential apartments, from 97 to 113, an additional three (3) carparking spaces, from 122 to 125, an additional four (4) levels and change to the unit mix to incorporate 18 affordable units at 266 Keira Street, Wollongong.

5. At that time, the extent of the proposed alterations and additions also included the following:

• 1,450.29m² additional gross floor area (GFA).

• Alteration to approved dwelling mix.

• Alterations throughout the building including plant and service areas.

• External alterations to accommodate new structural columns on the ground level and other structural engineering matters.

• The total GFA of the affordable rental housing dwellings is 1,617.8m², which is 15.08% of the total gross floor area (GFA) proposed.

6. As the development application was otherwise undetermined, Blaq Property filed an appeal for its deemed refusal with the Court on 15 August 2024, under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

7. On 22 April 2025 Blaq Property was granted leave to rely upon amended plans and other documents, and to amend the development application.

8. On the eve of the hearing, Blaq Property sought to further amend the development application by Notice of Motion that was heard, unopposed, at the outset of the hearing.

9. The Council, as the relevant consent authority, approved the amending of the development application in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), subject to Blaq Property paying the Council’s costs thrown away as a result of the amendments contained in a bundle of documents later marked Exhibit C.

10. Finally, at the commencement of the final day of the hearing, Blaq Property was once again granted leave to amend the application before the Court, unopposed, and the Court exercised its authority, in accordance with s 39(2) of the Land and Environment Court Act 1979 (NSW) to approve the amending of the development application by amended plans at Exhibit E, subject to Blaq Property paying the Council’s costs thrown away as a result of those amendments.

11. The Council’s Amended Statement of Facts and Contentions (Exhibit 1) identifies those matters for which Council contends. In essence, it would seem these fall into two categories:

1. The height of the proposed building and environmental impacts that arise.

2. Ground level conflict between vehicles and pedestrians.

12. In closing submissions, the Council also submits that consideration of those two matters would lead the Court to reject the request made under cl 4.6 of the Wollongong Local Environmental Plan 2009 (WLEP) to vary the height controls on the site.

The site and its context

13. The site addresses two streets that are west of Maccabe Park. Keira Street lies to the east of the site, and Kenny Street to its west.

14. In general terms, the development is for a podium building that spans the site from Keira Street to Kenny Street, with a tower component located over the podium building to the west of the site.

15. The site is located within an area zoned E2 Commercial Centre in which shop top housing development is permitted with consent, where consistent with the following objectives for development in the E2 zone:

•  To strengthen the role of the commercial centre as the centre of business, retail, community and cultural activity.

•  To encourage investment in commercial development that generates employment opportunities and economic growth.

•  To encourage development that has a high level of accessibility and amenity, particularly for pedestrians.

•  To enable residential development only if it is consistent with the Council’s strategic planning for residential development in the area.

•  To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

•  To encourage development that is consistent with the centre’s position in the centres hierarchy.

•  To strengthen the role of the Wollongong city centre as the business, retail and cultural centre of the Illawarra region.

16. Two items of local heritage significance are located within MacCabe Park:

1. Canary Island date palms (item 6587)

2. Memorial Arch and monument (item 6324)

17. It is relevant to note that the site is subject to two height standards according to the relevant map at cl 4.3(2) of the WLEP. The height standard that applies to that portion of the site to the east is 24m, marked S, and the height standard of 48m applies to the west portion of the site, marked X, as shown in the centre of the excerpt from the height of buildings map re-produced below:

18. That said, the development seeks to obtain the benefit of height permitted under s 16 of State Environmental Planning Policy (Housing) 2021 (Housing SEPP). While there is no dispute that the development satisfies the preconditions of the height bonus, the parties agree it is the height of the development now proposed that gives rise to overshadowing that the Council considers unacceptable, and the proposal exceeds the height and seeks to vary the height standard under cl 4.6 of the WLEP.

The overshadowing is explained

19. It is first helpful to explain the provisions in respect of overshadowing, and the extent of shadow cast by the proposal.

20. MacCabe Park is a large area of public open space to the east of the site, zoned RE1 Public Recreation according to the WLEP.

21. The WLEP contains controls to protect MacCabe Park from excessive overshadowing. To this end, cl 8.3(3) of the WLEP provides that development on certain land is prohibited if the development results in any part of a building projecting above a sun access control at subcl (5).

22. The key on the Sun Plane Protection Map (sheet SPP_025) designates MacCabe Park as a Protected Area between the hours of 12-2pm on 21 June.

23. Subclause (5) is in the following terms:

(5)  The sun access control for any point on land shown coloured yellow on the Sun Plane Protection Map and marked “MacCabe Park—Keira Street” is—

(a)  24 metres above the point, or

(b)  if the point is within 4.4 metres of the boundary of Keira Street—  metres above the point,

where D is the shortest distance in metres between the point and the boundary of Keira Street.

24. Relevantly, the control applies to land located within the area identified as MacCabe Park – Keira Street on the relevant map, an excerpt of which is re-produced below:

25. It is commonly held by the parties that the controls at cl 8.3 relate only to that half of the site that fronts Keira Street, and that it is the taller development to the west of the site fronting Kenny Street, not within the relevant area, that causes the overshadowing.

26. As such, the Court’s consideration of overshadowing is properly directed to the design excellence provisions at cl 7.18 of the WLEP, rather than to the controls at cl 8.3.

27. Next, the extent of overshadowing is described.

28. The shadow cast by the proposed development is shown on Architectural drawings DA 401-410 (Exhibit E). Shadow falls on the eastern side of Keira Street from either 1.30pm or 1.45pm onwards in mid winter.

29. At 1.45pm, the extent of overshadowing is measured at 203.3m².

30. At 2pm, the extent of overshadowing is measured at 615.8m². This area amounts to 1.12% of Maccabe Park’s area and Blaq Property submits that 59.02m² of the overshadowing at 2pm was approved as part of the Original Consent.

The height standard is exceeded

31. As stated at [18], the proposed development seeks to obtain the benefit of height derived from s 16 of the Housing SEPP by providing a component of affordable housing that equates to 15% of the total number of units proposed.

32. The height standard on the relevant map at cl 4.3(2) of the WLEP is 48m. Adopting the additional height permitted by the s 16 of the Housing SEPP permits a height of 62.4m.

33. The maximum height of the development now proposed is 73m when measured from the reduced level (RL) of the lift pit, RL -2.12, to the highest point of the lift overrun, RL 70.88.

34. The height exceedance is explained in a document titled ‘Clause 4.6 Variation Statement’ prepared by MMJ Town Planning dated 8 July 2025 (Variation Statement) (Exhibit C, Tab 3). The Variation Statement describes the ground level from which the height is derived to have been artificially lowered by the basement now constructed on the site. As the application before the Court is for alterations and additions to an existing development application, the Variation Statement relies on the level of the basement it describes as an existing basement and so measures the height of the proposed development from the lowest point of the existing basement, consistent with the Court’s decision in Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582.

35. In seeking to justify the contravention, the Variation Statement asserts that it is unnecessary or unreasonable to require compliance with the height standards applicable to the site because the objectives of the standards are achieved, notwithstanding the non-compliance with the standards.

36. The objectives of the height standard at cl 4.3 are as follows:

(a)  to establish the maximum height limit in which buildings can be designed and floor space can be achieved,

(b)  to permit building heights that encourage high quality urban form,

(c)  to ensure buildings and public areas continue to have views of the sky and receive exposure to sunlight.

37. Additionally, the objective of the standard at s 16 of the Housing SEPP, found at s 15A, is in the following terms:

“…to facilitate the delivery of new in-fill affordable housing to meet the needs of very low, low and moderate income households.”

38. In respect of the objectives at cl 4.3 of the WLEP, the Variation Statement states that objective (a) is achieved by the interrelationship of the height control in the WLEP that establishes the height control to which the height and floor space ratio (FSR) bonus’ at s 16 are applied. The exceedance of the height standard at s 16 of the Housing SEPP only results from the artificial lowering of the ground level for the existing basement.

39. Next, objective (b) is said to be achieved because the additional height encourages a more appropriate tower form on the site by improving “the horizontal to vertical relationship of the existing approved development.”

40. Finally, objective (c) is achieved because the development maintains views to the sky and does not result in any significant detrimental overshadowing impacts to public places.

41. Turning to the objective of the height control at s 16 of the Housing SEPP, the Variation Statement asserts the proposed development facilitates the delivery of new in-fill affordable housing by providing 18 units designated as affordable, in development that only exceeds the height of 62.4m otherwise allowed because of the existing basement that has altered the ground level on the site.

42. The Variation Statement also advances five environmental planning grounds it regards as sufficient to justify the contravention, summarised as follows:

1. Firstly, the variation is due to the artificial lowering of the existing ground level for a basement that involves excavation in excess of 11m in depth when measured at the lift pit, which is greater than the proposed exceedance.

2. Secondly, the exceedance facilitates the delivery of affordable housing.

3. Thirdly, the height exceedance is imperceptible from the public domain because it results from basement excavation that is not evident beyond the site.

4. Fourthly, the variation promotes efficient land use in a transitioning urban area, aligning with the site’s role in supporting high-density, mixed-use development near transport infrastructure and services.

5. Fifthly, the proposal enhances community diversity and supports economic sustainability in Wollongong by integrating additional affordable housing.

Expert evidence on height

43. The Court was assisted in considering matters of planning and design by experts in these disciplines who conferred in the preparation of a joint expert report (Exhibit 5). The experts are:

1. Ms Anne Starr (planning) and Mr David Jarvis (urban design), on behalf of the Council, and

2. Mr Luke Rollinson (planning) and Mr Rohan Dickson (urban design) on behalf of Blaq Property.

44. The expert’s written evidence provides context to the development, and the overshadowing that results from the height of the development.

45. Ms Starr’s written evidence explains the strategy employed by the Council since the 1980’s to acquire those lots of land to the west of MacCabe Park, consistent with the Wollongong City Centre Urban Design Framework. MacCabe Park comprises 30 lots of land, all but two of which are in the ownership of Council.

46. Three lots to the west of MacCabe Park, known as 279, 281 and 283 Keira Street, are in Council ownership and are said by Ms Starr to be excessively overshadowed by the proposed development by up to 20m – a circumstance that would not occur in development that exhibits design excellence in terms required by cl 7.18 of the WLEP.

47. Mr Rollinson considers it relevant that Council continues to renew leases for the property at 283-285 Keira Street, for periods of between 5 and 10 years. As such, the properties do not function as public open space, but as commercial entities.

48. Mr Rollinson relies on the sun plane protection map at [24] to support his primary view that the overshadowing that does occur results from development on that part of the site that is not coloured in yellow, and so is land excluded from the sun plane controls. As stated previously, this is a position jointly held by the parties.

49. Mr Rollinson also sets out reasons the extent of overshadowing is acceptable. In summary, this is because of the negligible proportion of MacCabe Park that is overshadowed, the limited duration of only 20-25 minutes in mid-winter, and because that area that is overshadowed is on the periphery of MacCabe Park, that is currently a combination of open grassland, small garden bed, seat and waste bin area and car parking.

50. The Variation Statement states the maximum height of the proposal is RL 70.88 to the top of the lift overrun.

51. The size and height of ductwork is also relevant as plant and equipment associated with mechanical ventilation is not integrated into the building envelope, but sits atop the roof, surrounded by aluminium screening. In broad terms, the plant and equipment comprises exhaust for the car park, loading dock exhaust, commercial kitchen and garbage room exhaust, and lobby relief air.

52. The Council initially contended that ductwork and fan units, absent confirmation to the contrary, may or do actually contribute to the overshadowing of MacCabe Park.

53. The path for ductwork, both up the building, and the transfer from the risers to penetrations in the roof itself was the subject of detailed plans and repeated conferral between experts in building services, Mr Mays Chalak on behalf of Blaq Property, and Mr Allan Harriman on behalf of the Council.

54. The experts conferred in the preparation of four joint expert reports filed 23 June 2025 (Exhibit 6), 23 June 2025 (Exhibit 7), 3 July 2025 (Exhibit 8) and 8 July 2025 (Exhibit 10)

55. In the final supplementary joint expert report at Exhibit 10, the building services experts consider the plans and other documents cited at [9] and agreed that still further changes to the duct size and layout was necessary. Two alternatives are expressed in words at par 19 of the final joint report.

56. These changes were first depicted in amended services plans prepared by Mr Chalak, that were the subject of oral evidence (Exhibit G), and later reflected in the amended plans at [10].

57. Blaq Property submits firstly that the ductwork now depicted in the amended plans demonstrate plant and equipment that is no higher than the lift overrun, and secondly that the Court can grant development consent to development subject to conditions so that a particular height, such as the RL of the lift overrun is not exceeded.

58. Blaq Property also submits that when undertaking the task required of it to consider the degree of overshadowing, the Court must have regard to a framework or rubric by which to measure or qualify the impact of the overshadowing.

59. According to Blaq Property, there are four sources for such a framework or rubric:

1. Firstly, by reference to the Sun Plane Protection provision at cl 8.3 of the WLEP that is not engaged, and which imposes a limited window of time that is further qualified by reference in the objective at subcl (1) to overshadowing that is ‘excessive’. However, an objective is not an operative provision, does not require strict compliance and is not an end in itself. Furthermore, when the terms of cl 7.20 of the WLEP are understood, which deal with overshadowing of public open space in other areas of Wollongong, there is a plain distinction that, in the case of MacCabe Park, permits some overshadowing so long as it is not excessive.

1. Secondly, by reference to Section 7.2.3 of the Wollongong Development Control Plan 2009 (WDCP) where ‘daylight’ and not ‘sunlight’ is the subject of controls.

2. Thirdly, by reference to the design excellence provisions at cl 7.18 of the WLEP where, at subcl (4)(d), overshadowing may be imposed so long as it is not to a degree that is detrimental.

3. Fourthly and finally, by reference to the Practice Note published by the Department of Planning titled ‘In-fill affordable housing’, December 2023 (Practice Note) (Exhibit 12) which encourages a flexible approach to be adopted by consent authorities, particularly where solar access provisions are contained in the relevant EPI.

60. The Council’s position is that overshadowing of MacCabe Park is accepted without limit, subject to a period between 12-2pm in mid winter when excessive overshadowing is not permitted. The Council describes this as the ‘Protected Period’.

61. Yet it is within this Protected Period that the proposal imposes shadow for a duration that equates to 25% of the Protected Period.

62. Next, the quantum of overshadowing within this period is between 203.3m² and 615.8m² – a quantum that cannot be described as other than detrimental and excessive.

63. To the extent Blaq Property relies on the flexibility encouraged in the Practice Note, that flexibility is directed to applicants and consent authorities, with a focus on the design response in respect of both the policy intent of government, and the impact of the development on the amenity of the site and adjoining land, taking into account the building’s height, scale and bulk. (Exhibit 12, folio 12)

64. Furthermore, the Practice Note directly addresses solar access controls in a local environmental plan by reference to sun access controls on sites in the vicinity of public open space that may not be able to accommodate the full height bonus and so only a portion of the bonus may be achieved, “up until the point where unreasonable overshadowing would occur.”

65. Mr Jarvis’ evidence is in similar terms, to the effect that the ability for the development to obtain the bonus is constrained by the fact that construction has commenced and so the location of the lift core and fire stairs are fixed (Exhibit 5, par 179).

66. The design review panel, that I note was chaired by Mr Jarvis, and whose advice is a mandatory consideration (s 147(3) of the Housing SEPP) held similar concerns, recorded in the minutes of its meeting held 26 July 2024 (Exhibit 2, Tab 2) as follows:

“The recent changes to SEPP Housing controls now results in the potential for buildings fronting Kenny Street to impact solar access to the park, if they are not designed in a contextually responsive manner…This is likely to require the remodelling of the entire tower form to provide a well-balanced tower composition that does not reduce access to MacCabe Park.” (folio 17)

…

“The introduction of additional height has significantly altered the proportions of the tower. The taller tower form would benefit from a more rational expression that assists in expressing the now slenderer proportions of the tower…” (folio 18)

67. As these are the tallest elements, located to the south of the site, I accept Mr Jarvis’ statement that a taller building may be possible to achieve without imposing unreasonable overshadowing, subject to what he describes as ‘remodelling’ of the tower. Relocation of the lift core and stairs may not be possible at this stage, however, I agree that remodelling may take other forms, if not to remove, at least to reduce the overshadowing imposed on MacCabe Park.

68. In simple terms, if bulk was re-allocated from the east of the lift core on Level 18 to a location west of the lift core at rooftop level – possibly in the form of a two-storey unit or units, it would remove bulk from the south east where it is most likely to cause overshadowing on MacCabe Park.

69. Similarly, if some or all of the rooftop plant and equipment was integrated into a plantroom below, it may remove all or some of the aluminium screening that would also appear to contribute to overshadowing.

70. Returning to the Variation Statement, for the reasons that follow, I am not satisfied that Blaq Property has demonstrated that compliance with the height standards applicable to the site is unreasonable or unnecessary, because in my view, Blaq Property has not demonstrated that the objectives at cl 4.3(b) and (c) are achieved, either by reference to the Variation Statement, or other material to which the Court has had regard.

71. Firstly, I consider the assertion on p 13 of the Variation Statement that the exceedance “encourages a more appropriate tower form on the site that improves the horizontal to vertical relationship of the existing approved development” to be no more than a statement of wide generality unsupported by reference to reasons, features or qualities that could be regarded as sufficient to demonstrate the assertion beyond its own terms.

72. The above paragraph also invokes design excellence. I note the Court has a Design Excellence statement prepared by Mr Rohan Dickson of AE Partnership (Exhibit C, Tab 9), in which a similar assertion is made on p 4 to the effect that “In comparison to the approved DA-2019/748/2, the proposal introduces an architecturally accentuated residential tower, which enhances the visual quality and urban character of the precinct (Figure 1)”.

73. Figure 1 is a visual comparison in the Design Excellence Statement between the previously approved development, and the development now proposed, with the North, East and West elevations placed side-by-side.

74. The opening sentence in the Design Excellence Statement notes that the previously approved development was deemed to exhibit design excellence. As such, I do not understand the imperative for “a more appropriate tower form”, or its nexus with the height exceedance now proposed.

75. Neither of the statements at [72] or at [73] refer to a proportional ratio or other logic on which such an assertion might be founded, or to a change in layout, materials or finishes that might flow from, or support the apparent improvement in the horizontal-to-vertical relationship. The built form, massing and modulation, that may be aspects to which the statement at [72] refers, is relevantly explained in the Design Excellence Statement to be “an additional four levels that adds to a positive bulk and massing enhancement for the building” and once again makes reference to Figure 1.

76. Instead, the additional four levels appear to be simply extruded vertically from the geometry of the built form below, adopting the same layout, materials and finishes to each floor. Architectural floor plans for Levels 14-17 are virtually identical to those levels below.

77. I also note the Design Excellence Statement states the tower form has an increased setback from Keira Street at Level 7 and above. However, this setback appears to be the setback required to evade the control at cl 8.3 of the WLEP that would apply the prohibition at [21].

78. The Court is also prepared to accept that reference to high quality urban form in the objective at cl 4.3(1)(b) is a like term for a high standard of architectural design appropriate to the building type and location, being a matter at cl 7.18(4)(a) of the WLEP. So understood, the Design Excellence Statement states, relevant to matters of height: “the proposed development provides a high-quality mixed-use building with focus on attractive streetscapes, public domain and active street frontage. These are the future city character of the Commercial Core of Wollongong City Centre Precinct, as described in Section 1.1 of the WDCP 2009, Chapter D13.”

79. While nothing turns on it, I note the characteristics of the City Centre Commercial Core are differently described to those above (Exhibit 2, Tab 6, p 2). In any event, I do not understand those characteristics to assist in support of the achievement of cl 4.3(1)(b).

80. The Court also seeks statements within the Design Certification prepared by Mr Robert Gizzi dated 8 July 2025 (Exhibit C, Tab 2) in accordance with s 29 of the EPA Regulation to support the assertion made as to objective (b).

81. In addressing the design principles at sch 9 of the Housing SEPP, the Design Certification states:

1. In respect of Principle 2 - built form and scale:

The proposed building and its alterations and additions are appropriate in terms of its bulk and height.

The height and scale of the proposal as approved provides an appropriate respond to the future desired character of the area.

The alterations and additions include a reduction to the unit numbers, GFA and parking requirements.

The alterations and additions maintains a strong articulation and scale

…

Unit numbers have been increased and mix has been revised as part of the alterations and additions.

2. In respect of Principle 9 – Aesthetics:

Balconies have solid and clear glazing in response to the levels in the building and orientation of balconies.

The base is modulated with respect to the scale of the street and content [sic]

Detailed facades with distinct louvres, panels and cladding.

Colours used are responsive to the surrounding natural and built environment.

Modulated façade / balconies to street frontage.

Use of separate proportions to break down the scale of the building.

82. Once again, the Court is unable to find within the statement above an argument supporting the assertion that the exceedance encourages a high quality urban form, and so I cannot be satisfied that the development is consistent with objective at cl 4.3(1)(b) for reasons set out in the Variation Statement or other material before the Court.

83. As stated at [41], the Variation Statement also asserts that the development is consistent with the objective at cl 4.3(1)(c) because the development maintains views to the sky and does not result in any significant detrimental overshadowing impacts to public places.

84. In considering the sunlight to which public areas should continue to be exposed, in terms set out at cl 4.3(1)(c), I state here that the Court accepts and agrees that the controls in cl 8.3 do not apply.

85. Instead, the test is derived from the provisions of cl 7.18 that requires development on land involving the construction of a new building or external alterations to an existing building within the Wollongong city centre to exhibit design excellence.

86. Such provisions prescribe a framework for deciding whether a development exhibits design excellence: Toga Penrith Developments Pty Ltd v Penrith City Council [2022] NSWLEC 1017 (Toga), at [70], and the Court must have regard to the particular terms of, and answer the particular questions raised by, the matters in the design excellence provisions (Toga, at [75]).

87. The Council identifies five elements within the design excellence provision at cl 7.18 of the WLEP that are not met:

(b)  whether the form and external appearance of the proposed development will improve the quality and amenity of the public domain,

…

(d)  whether the proposed development detrimentally overshadows the following—

(i)  an area shown distinctively coloured and numbered on the Sun Plane Protection Map,

…

(e)  how the proposed development addresses the following matters—

(vii)  environmental impacts such as sustainable design, overshadowing, wind and reflectivity,

(viii)  the achievement of the principles of ecologically sustainable development,

(x)  impact on, and any proposed improvements to, the public domain,

88. For the reasons that follow, it is because the proposed development fails to achieve four of those aspects of design excellence at [87] that I also find the proposed development fails to demonstrate consistency with the objective at cl 4.3(1)(c), and so also fail to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of this matter (cl 4.6(3)(a) of the WLEP).

89. I do not understand the achievement of the principles of ecologically sustainable development to be compromised by the height of the development or by the overshadowing that results from the exceedance.

90. However, when the extent of overshadowing on the public domain is understood in terms of its area, expressed in m², the form of the proposed development that causes the overshadowing, being the exceedance of the height standard, does not improve the amenity of the public domain at certain times of the day in mid winter (cl 7.18(4)(b) and (4)(e)(x)).

91. Next, and relatedly, this is because the exceedance contributes to the overshadowing of MacCabe Park at a time when exposure to sunlight is desired and in an area that is shown distinctively coloured and numbered on the Sun Plane Protection Map. I accept the Council’s submission that this provision is distinct from the sun plane protection control at cl 8.3 which instead applies to land located within the area identified as MacCabe Park – Keira Street on the map re-produced at [24]. The quantum of the overshadowing, and lack of modelling in the built form to minimise or ameliorate such a quantum is to a degree I consider detrimental. I note the degree of detriment is not required to reach the more acute test of being significantly detrimental which is the term used at [83].

92. While I note the statement at p 7 of the Design Excellence Report considers the overshadowing limited, temporary, minor and the area of impact to be partly currently used as a carpark, I note all overshadowing is generally limited in some way, and temporary inasmuch as shadows move throughout the day. As for the extent of overshadowing falling on an area used as carpark, I do not consider it minor in quantum or impact, and I note the stated policy of Council is to return those uses on lots to the west of MacCabe Park to public open space.

93. Additionally, in respect of the environmental planning grounds at [43], I regard the second, fourth and fifth grounds to promote the benefit of development as a whole. In respect of the first ground, which relies on the excavation of the basement to, in effect, assert the exceedance is merely technical, it is refuted by the third ground that asserts the exceedance is imperceptible. It is not. For reasons at [91]-[93], the impact of the exceedance is perceptible during those times when between 203.3m² and 615.8m² of public space is overshadowed.

94. While the proposal seeks greater height in order to provide a component of affordable housing, the public benefit derived from such provision must, in my view, be balanced with a proper understanding of the impact of the development on the amenity of adjoining land, being public open space for the benefit of all, and taking into account the building’s height, scale and bulk.

95. For these reasons I find Blaq Property has not demonstrated that the exceedance of the height standards results in development that is consistent with the objective at cl 4.3(1)(c) of the WLEP, and has not demonstrated sufficient environmental planning grounds to justify the contravention of the standard.

96. As such, the power of the Court is not enlivened and the appeal must be dismissed.

Orders

97. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is dismissed.

3. Development application DA-2024/476 seeking consent for alterations and additions to approved shop top housing development comprising an additional 16 residential apartments, from 97 to 113, an additional three (3) carparking spaces, from 122 to 125, an additional four (4) levels and change to the unit mix to incorporate 18 affordable units at 266 Keira Street, Wollongong is refused.

4. All exhibits are returned except for Exhibits A, B, C, E and 12.

T Horton

Commissioner of the Court

**********

Decision last updated: 14 August 2025