Brewster Murray Pty Ltd v Wollongong City Council

[2021] NSWLEC 1651

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brewster Murray Pty Ltd v Wollongong City Council [2021] NSWLEC 1651

Hearing dates:

Conciliation conference held on 7 and 11 October 2021

Date of orders:

1 November 2021

Decision date:

01 November 2021

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [45] below

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – residential tower comprising 107 dwellings – Wollongong city centre – development standard contravention – design excellence –considerations relating to existing development consent involving neighbouring property – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.8

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979, s 34

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, cll 4.3, 4.4, 4.6, 5.3, 5.10, 7.1, 7.6, 7.14, 7.18

Cases Cited:

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

Apartment Design Guide

Land and Environment Court, COVID-19 Pandemic Arrangements Policy, (April 2021)

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Brewster Murray Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
McCabes (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2020/268523

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Southern Regional Planning Panel’s refusal of Development Application No. DA-2019/748 (DA).

2. The DA seeks consent for the demolition of existing structures, and construction of a mixed use development, including ground floor commercial and retail and 107 residential units at Lot 101 DP 709651, Lot 1 DP 800021, Lot 100 DP 1130021 and Lot 4 DP 522288 otherwise known as 264-268 Keira Street and 23 Kenny Street Wollongong (site).

3. The Applicant in the appeal is Brewster Murray Pty Ltd and Wollongong City Council (Council) is the Respondent.

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 October 2021, and at which I presided. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy April 2021, the matter was conducted on the Microsoft Teams platform.

5. After more time was provided after the conciliation conference, the parties came to an 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.

6. 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.

Jurisdiction

General

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings, including through provision of a “Statement of Reasons – Jurisdictional Prerequisites” provided to the Court on 6 October 2021. I also took the opportunity to work through the jurisdictional considerations with the parties and experts during the course of the conciliation conference. My consideration of jurisdictional factors is provided below.

State Environmental Planning Policies

8. In regard to State Environmental Planning Policy No 55 – Remediation of Land, and in particular cl 7(1), the parties referred me to the Detailed Site Investigation by Douglas Partners (behind Tab 12 to the Applicant’s Class One Application filed with the Court on 17 September 2021 (Class 1 Application) which found the site suitable for the proposed mixed use development from a contaminated land perspective, subject to certain recommendations. These recommendations have been adopted in the proposed consent conditions (Condition 2). The requirements are met.

9. In regard to State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and relevant provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), the Applicant has provided a Design Verification Statement, referencing the amended application, which meets the requirements of cll 50(1AB) and 143A of the EPA Regulation (prepared by a Registered Architect with reference number: 6981). I have considered the report of the Wollongong Design Review Panel (meeting 27 August 2019) and I have considered the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide and, in agreement with the parties, I believe that adequate regard has been had to them.

10. The Class 1 application before the Court, as filed on 15 September 2020, included a BASIX certificate, as required. I accept the agreed explanation of the parties that in this instance there is no need for an update to certificate as the proposed development does not differ in any material respect from the description contained in a current BASIX certificate.

Wollongong Local Environmental Plan 2009

11. The site falls within Zone B3 – Commercial Core under Wollongong Local Environmental Plan 2009 (WLEP). The proposed development is permissible in this zone with demolition permissible under cl 2.7. I note the zone objectives are as follows:

• To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community.

• To encourage appropriate employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

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

• To provide for high density residential development within a mixed use development if it—

(a) is in a location that is accessible to public transport, employment, retail, commercial and service facilities, and

(b) contributes to the vitality of the Wollongong city centre.

12. Further in regard to WLEP, I note the following:

1. Clause 5.21 is concerned with flood planning and minimising flood risk. Having given consideration to the matters at cl 5.21(3) I am satisfied in regard to the matters listed at cl 5.21(2) given the advice provided to me by the parties in the conciliation conference. Conditions of relevance to cl 5.21, addressing the pertinent matters to be satisfied, include Conditions 13, 34, 39, 40, 43 and 78.

2. Clause 7.1 is concerned with public utility infrastructure. The parties have advised me that all public utility infrastructure essential for the proposed development is available or that adequate arrangements have been made to make it available when required, including via the agreed conditions. I am satisfied on that front.

3. Clause 7.5 is concerned with acid sulphate soils. The site is identified as Class 5 land under WLEP but no works are proposed within 500m of relevance Class 1, 2, 3 or 4 land. The clause does not trigger in this instance.

4. Clause 7.6 is concerned with earthworks and the potential for disruption of externalities, as a consequence. It requires me to give consideration to certain related matters. I have undertaken the relevant consideration at cl 7.6(3) and I note: (1) conditions are proposed relating to preparation of dilapidation reports for adjoining property and (2) related provisions in regard to required construction management plans. The prescribed conditions, as provided at cl 98E of the EPA Regulation, are also noteworthy here.

5. Clause 7.13 is concerned with ensuring active uses at the street level, including on land zoned B3 commercial core, as is the subject site. The requirements are satisfied with the proposed configuration which does not include residential accommodation on the ground floor but does include commercial and retail uses.

6. Clause 7.18 is concerned with design excellence. I will return to this provision after considering the development standard contravention explained below.

7. Clause 8.3 is concerned with protecting certain public open space from excessive overshadowing, in this case it is MacCabe Park which is located to the east of the site across Keira Street. The clause includes prescriptive requirements in regard to potential overshadowing of MacCabe Park, or put another way, ensuring permissible development does not result in any part of a building projecting above a prescribed sun access control. I accept the advice of the parties that the proposal does not offend the prescriptive requirements.

8. Clause 8.4 is concerned with ensuring buildings have a minimum street frontage width. In this is instance the requirement is readily met.

9. Clause 8.6 is concerned with building separation. There are contraventions of this control. Clause 4.6 of WLEP permits such contraventions provided certain prerequisites are satisfied. Below I consider these contraventions in light of cl 4.6.

13. For the record, I note that the proposal is compliant with the relevant development standards for building height (cl 4.3) and floor space ratio (cl 4.4A) under WLEP.

Development standard contravention

Contravention explained

14. I quote cl 8.6 of WLEP in full below:

8.6 Building separation within Zone B3 Commercial Core or Zone B4 Mixed Use

(1) The objective of this clause is to ensure sufficient separation of buildings for reasons of visual appearance, privacy and solar access.

(2) Buildings on land within Zone B3 Commercial Core or B4 Mixed Use must be erected so that—

(a) there is no separation between neighbouring buildings up to the street frontage height of the relevant building or up to 24 metres above ground level whichever is the lesser, and

(b) there is a distance of at least 12 metres from any other building above the street frontage height and less than 45 metres above ground level, and

(c) there is a distance of at least 28 metres from any other building at 45 metres or higher above ground level.

(3) Despite subclause (2), if a building contains a dwelling, all habitable parts of the dwelling including any balcony must not be less than—

(a) 20 metres from any habitable part of a dwelling contained in any other building, and

(b) 16 metres from any other part of any other building.

(4) For the purposes of this clause, a separate tower or other raised part of the same building is taken to be a separate building.

(5) In this clause—

street frontage height means the height of that part of a building that is built to the street alignment.

15. There is a breach in regard to cl 8.6(2)(a). This subclause would require no separation at ground level between neighbouring buildings and up to the street frontage height of the relevant building, or to 24m above ground level (AGL), whichever is the lesser. The application contravenes this.

16. While subcll 8.6(2)(b) and (c), also refer to building separation, I agree with the submission that they are not triggered in this instance. Subclauses 8.6(2)(b) and (c) are concerned with building separation at higher levels. There are two further, what might be thought of as horizontal “bands” identified, (ie above the “street frontage” or 24m AGL height “plane” referenced at cl 8.6(2)(a)). The first is referenced at cl 8.6(2)(b) and can be considered as a band above the plane referenced at cl 8.6(2)(a) and up to 45m AGL, with a requirement that “there is a distance of at least 12m from any other building”. The second is at cl 8.6(2)(b), referring to a band above the 45m AGL height plane, with a requirement that “there is a distance of at least 28m from any other building”. The submission is that as subcll 8.6(2)(b) and (c) introduce controls relating to distances between the proposed building and “any other building”, and in this instance there are not any other buildings existing in the identified bands, as such there could be no breach.

17. Clause 8.6(3) is somewhat different. It is concerned with distances between habitable parts of proposed dwellings and neighbouring buildings. First, I accept the advice that neighbouring buildings are not used for residential purposes and as such cl 8.6(3)(a) is not breached. However, a direct reading of the text to cl 8.6(3)(b), alone, indicates a requirement that habitable parts of dwellings within the proposal must be not less than 16m from “any other part of any other building”. The proposal would contravene this control.

Written request

18. The Applicant relies on a written request prepared pursuant to cl 4.6(3) of the WLEP, by Elton Consulting. The written request, initially dated 6 October with an addendum dated 18 October 2021 (WR), seeks to justify the contravention of the development standards in question. I have considered the WR and am satisfied that it adequately addresses the particular tasks required of it for the following reasons.

In consideration of the contravention of clause 8.6(2)(a) of WLEP

19. The WR adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (a requirement of cl 4.6(3)(a) of WLEP). It does so mindful of Preston CJ’s findings in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe). The WR uses the first “Wehbe way”, seeking to show how the development achieves the objectives of the standard, notwithstanding the contravention. The objective is set out at [14]. The WR addresses each of the three “reasons” nominated in the development standard’s objective for the numerical building separation requirements of the clause. In my opinion it adequately demonstrates that as a consequence of the adopted design:

1. The visual appearance objectives of the building separation control are achieved. This is because of the adopted building separation positioning, the built form articulation, built form proportional framing, and the quality of materials.

2. The privacy objectives of the building separation control are achieved. In regard to visual privacy, this is because of the internal layout of the apartments, including location of window and door openings to minimise overlooking. An assessment against the privacy controls of the Apartment Design Guide (ADG) is provided and it is indicated that in instances where the numerical requirements are not met design responses achieve privacy through blade walls and screening to balconies. Acoustic privacy objectives are also achieved with the WR referencing a specialist noise assessment, the recommendations of which are required to be complied with under proposed Condition 60.

3. The solar access objectives of the building separation control are achieved. This is because the proposal has been designed to achieve the minimum solar access requirements as prescribed by the ADG. A modelling exercise has been undertaken which has shown that, should (relevantly) the site to the south also be redeveloped for mixed use purposes, future apartments in the building would be able to meet ADG requirements. The WR also nominates reasonable protection of solar access to the public domain, and the fact that the proposal complies with the sun access controls (at cl 8.3 of WLEP).

20. The WR also adequately demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard (cl 4.6(3)(b) of WLEP). The following nominated grounds are for me sufficient for this purpose: the fact of a drainage easement running along the northern boundary of the property which prevents development to that boundary (ie as required under the development standard), the current policy requirement for a through-site pedestrian link (under Chapter D13, Part 3.2.3 of the Wollongong Development Control Plan 2009) and the proposed design schema which seeks to integrate with building separation space (in part via the drainage easement) and other design and land use initiatives, to activate the frontage along the through-site link as a “place making opportunity”.

21. Clause 4.6(4)(a)(ii) of WLEP seeks a finding on whether the proposed development will be in the public interest because it is consistent with the objectives of the standard and the zone objectives.

22. For the reasons outlined in the WR and explained above, I am satisfied that the development is consistent with the objectives of the standard which is contravened.

23. I also find the development consistent with the objectives for development within the B3 zone. This is because the proposal:

1. provides for commercial uses at the ground level which can serve the needs of the local and wider community;

2. would be reasonably expected to provide for employment in these commercial ventures, noting the site is in an accessible location some 300m from Wollongong Station hub;

3. is well located for public transport including Wollongong Station, but also to other destinations including Wollongong City Centre, and as such can be expected to encourage walking and cycling (bike parking facilities are provided on site);

4. would deliver additional accommodation near Wollongong City Centre and thus could be considered as contributing to its strengthening; and

5. provides for high density residential development within a mixed use development in an accessible location, close to shops, services and employment opportunities contributing to its vibrancy.

In consideration of the contravention of clause 8.6(3)(b) of WLEP

24. According to the WR, the habitable parts of the proposed dwellings would have setbacks of 9m (to the northern neighbour) and 6m (to the southern neighbour).

25. As I have previously referenced, the WR uses the first “Wehbe way” to demonstrate to my satisfaction how the development achieves the objectives of the standard, notwithstanding the contravention.

26. The WR also adequately demonstrates that there are sufficient environmental planning grounds to justify the breach of the standard. These were in regard to the fact that this proposal is one of the first developments in the immediate locality and how strict compliance would thwart well-designed development in accordance with the intentions for the redevelopment of Wollongong City Centre.

27. In regard, again, to cl 4.6(4)(a)(ii) of WLEP I have already found that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the zone objectives.

28. I have already found that the WR has adequately addressed the matters required to be demonstrated and that the requirements of cl 4.6(4)(a)(i) of WLEP are met in regard to the breaches of cl 8.6(3)(b).

Concluding on the breaches of clause 8.6 of WLEP

29. Given my findings above, I am satisfied that the Applicant’s WR has adequately addressed the matters required to be demonstrated and that the requirements of cl 4.6(4)(a)(i) of WLEP are met in regard to the breaches of subcll 8.6(2)(a) and 8.6(3)(b).

30. On the above basis, I am also satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met in regard to the two breaches of cl 8.6 of WLEP.

31. I also note here that I do not need the concurrence of the Planning Secretary under cl 4.6(4)(b), but I have considered the matters in cl 4.6(5) of WLEP in coming to my conclusions in regard to the contravention and find nothing of significance arises in regard to these matters.

32. The states of satisfaction required by cl 4.6 of the LEP have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breaches of the control.

Objecting submissions

33. Under cl 4.15(1)(d) of the EPA Act, I am required to consider objecting submissions. I have given consideration to these submissions as provided to me by Council. Some of the submissions raised concerns about potential impacts. Under cl 4.15(1)(b) of the EPA Act, I am required to consider “likely impacts” of the development. The parties worked through the impacts of concern as raised in submissions (but also generally). The statutory requirement “to take into consideration” the submissions, and to consider “likely impacts” of the development have been met.

34. A submission raised a legal consideration to which I need to make reference. The submission was made by Creative Planning Solutions and was dated 23 July 2021 (CPS submission). It was made on behalf of occupants of the site to the immediate north at 21 Kenny Street. The issue in the submission, which I raise here, is that approval of the proposal would adversely affect the ongoing operation of the business at 21 Kenny Street. It is evident that at present, the operation at 21 Kenny Street uses some of the unbuilt upon land between the building at 21 Kenny Street and the building at 23 Kenny Street (including part of the site) for various access-related purposes. The CPS Submission indicates that the current operation at 21 Kenny Street relies on an existing parking easement and a right of way benefitting it (and which encumber, in part, the site). The submission was that there was a development consent in place (DA-2017/1644) approving use of the premises at 21 Kenny Street for “wholesale of hardware and trade supplies” which extended into this unbuilt upon land between the buildings at 21 Kenny Street and 23 Kenny Street (CPS Submission p 2).

35. The suggested impacts relate to loss of parking spaces, pedestrian entry into the building, an emergency escape door relating to fire exit and vehicle entry and loading/unloading (including Medium Rigid Vehicles). The suggestion is that approval of the proposal would mean that approved arrangements would not be able to continue, that a contravention of the existing consent would result and that there would be a severe impact on the economic viability of the existing operation (CPS Submission p 5).

36. The essential question before me here, in the face of an agreement between the parties made under s 34(3) of the LEC Act, is whether the decision made by the parties in regard to the granting of development consent to the proposal is a decision “that the Court can make in the proper exercise of its functions”. That is to say whether or not there are jurisdictional bars to the exercise of the power under s 4.16 EPA Act to grant consent to the development application.

37. The tests here include, relevantly, whether the development application was properly made, which includes the need for land owners consenting to a development application, and whether due consideration has been given to evaluative tests at cl 4.15(1) of the EPA Act. The latter includes a need to “take into consideration”: (1) objecting submissions (such as that from CPS), and (2) “likely impacts” (including in regard to “social and economic impacts in the locality” which sometimes relate to neighbouring properties). If such consideration has occurred, then the requirements of cl 4.15(1) of the EPA Act, in regard to these matters, have been satisfied; and as far as this point goes, there would be no bar to the Court disposing of the proceedings in accordance with the conciliated agreement of the parties. Both the CPS Submission and the parties have explained to me the potential impacts on the operations of the premises to the north of the site, and as indicated above, I have given consideration to the likely impact in this instance (and in regard to other objections).

38. It is indicated in the CPS Submission that “(whilst) the required travel path extends beyond the right of way, this shared driveway arrangement was agreed to by the landowners for access (noting the existing driveway location) and has been consented to by Council” (CPS Submission p 5). I note that Council advised me that these submissions of CPS do not properly represent the status of that consent. But, in any event, there is nothing before me to suggest it reasonable that “agreements” (in this case purported by CPS to have been in place between the owners of 21 and 23 Kenny Street) should be enforced, by a consent authority, in the process of the evaluation of an application for development consent. There are other jurisdictions available to hear concerns about breaches of property related agreements.

39. My essential finding, on this particular matter raised in the CPS Submission, is that the submission should not provide a bar to the task required of me under s 34(3) of the LEC Act. I do need to be assured that the relevant owners have consented to the application before me. The parties have made it clear that the consent of the owners of the affected land has been secured. It is not for me here, in the jurisdiction of Class 1 of this Court, to be drawn into what appears to me to be a property rights related concern.

Design excellence

40. Clause 7.18 of WLEP is concerned with design excellence in Wollongong city centre areas including the subject site. Its objective is “to deliver the highest standard of architectural and urban design”. Clause 7.18(3) provides as follows:

Development consent must not be granted to development to which this clause applies unless, in the opinion of the consent authority, the proposed development exhibits design excellence.

41. Clause 7.18(4) lists a series of matters I need to have regard to in this consideration, and that has occurred in this instance.

42. While the parties are of the view that the proposed threshold has been met, I need to make my own conclusion in regard to the question. It is my finding that the development does exhibit design excellence. There are three principal reasons for this:

1. I accept the explanation in the proposal’s design verification statement (prepared by Brewster Murray, signed by Registered Architect Hong Huang and dated October 2021). The statement works through each of the nine design quality principles at Schedule 1 to State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development relating to aspects of the proposal. The statement convinces me the proposal demonstrates superior design qualities in regard to these principles generally, and in the integration of the principles.

2. I accept the position adopted by Council experts. Council worked me through the various design excellence related contentions and how they had now been addressed in the plans now before the Court. That is to say, it is relevant to me in the resolution of this question of design excellence that Council is sufficiently convinced that the proposal, as amended, does satisfy the design quality principles and the relevant Apartment Design Guide particulars.

3. I give close regard to the involvement of the Wollongong City Council Design Review Panel. It was made evident to me that there was a considerable degree of involvement of the Panel in the finalisation of the proposal now before the Court.

Together these reasons satisfy me that the proposal exhibits design excellence.

Conclusion

43. I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. Therefore, under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties’ decision. Further, I was 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(1) of the EPA Act.

44. Further, in regard to the amendments to the application, the Court notes:

1. Wollongong City Council as the relevant consent authority for the purposes of cl 55 (1) of the Environmental Planning and Assessment Regulation 2000 (NSW) has agreed to the Applicant amending the DA

2. The amended DA has been uploaded to the NSW Planning Portal; and

3. The Applicant has subsequently filed the amended DA with the Court on 7 October 2021.

45. The Court orders that:

1. The Applicant’s written request under clause 4.6 of the Wollongong Local Environmental Plan 2009 (WLEP), prepared by Elton Consulting and dated 6 October 2021 and Addendum 18 October 2021 seeking a variation for the development standard for minimum building separation under cl 8.6 of the WLEP, is upheld;

2. The class 1 application is upheld;

3. Development consent is granted to development application DA 2019/748 for the demolition of existing structures, and construction of a shop top housing development at Lot 101 DP 709651, Lot 1 DP 800021, Lot 100 DP 1130021 and Lot 4 DP 522288 otherwise known as 264-268 Keira Street and 23 Kenny Street Wollongong, subject to the conditions annexed hereto and marked “Annexure A”.

……………………….

P Walsh

Commissioner of the Court

Annexure A (234687, pdf)

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Decision last updated: 01 November 2021