Churches of Christ Property Trust ATF Churches of Christ Community Care v Wollongong City Council

Case •

[2025] NSWLEC 1152

•

14 March 2025

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Churches of Christ Property Trust ATF Churches of Christ Community Care v Wollongong City Council [2025] NSWLEC 1152
Hearing dates: 23, 24 October and 16 December 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction:Class 1
Before: Porter C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application number 2023/112, as amended, for the demolition of existing buildings, tree removal and the construction of a two to three storey seniors housing building comprising 18 independent living units over basement car parking at 8-10 Tasman Parade, Thirroul, is determined by the grant of development consent subject to the conditions at Annexure A.

(3) The exhibits are returned, except for Exhibits A, B, C and 3.

Catchwords:

DEVELOPMENT APPEAL – seniors living – independent living units – all contentions resolved – community objections – easement – deferred commencement

Legislation Cited:

Conveyancing Act 1979, s 88E

Environmental Planning and Assessment Act 1979, s 4.15

Environmental Planning and Assessment Regulation 2021, s 27

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 5, ss 84, 85, 87, 88, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 108, 144, 145, 147, Schs 4, 9, 7A

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, s 4.6

Wollongong Local Environmental Plan 2009, cll 4.3, 4.4, 5.10

Cases Cited:

CKDI Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1018

Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70

Georges River Council v Eskander [2024] NSWLEC 98

Texts Cited:

Austroads Guide to Road Design

AS/NZS 2890.1:2004

Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy

NSW Department and Planning and Environment, Apartment Design Guide

NSW Fire and Rescue, Fire and Rescue Guidelines

NSW Planning & Environment, Seniors Housing Design Guide (November 2023)

Standards Australia, AS/NZS 2890.1:2004

Wollongong Development Control Plan 2009

Category:Principal judgment
Parties: The Churches of Christ Property Trust ATF Churches of Christ Community Care (Applicant)
Wollongong City Council (Respondent)
Representation:

Counsel:
H Grace (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
KL Gates (Applicant)
Marsdens Law Group (Respondent)
File Number(s): 2023/236551
Publication restriction: Nil

JUDGMENT

  1. COMMISSIONER: These proceedings are about a proposed seniors living development that is strongly objected to by the community. There are no substantive contentions remaining in dispute.

  2. This is a Class 1 appeal of the deemed refusal of DA-2023/112 for the demolition of existing buildings, tree removal and the construction of a two - three storey seniors housing development comprising 18 independent living units over basement car parking (DA) at 8-10 Tasman Parade, Thirroul.

  3. This appeal is associated with DA-2023/113 at 19, 21 and 23 Tasman Parade Thirroul, also for a seniors living development. Both appeals were heard concurrently. There is a relationship between the two proposed developments with shared communal open spaces on both sites.

  4. Following the conferencing of the experts and provision of further information the parties confirmed to the Court that there were no remaining issues in contention, except for some conditions of consent. Notwithstanding, in standing in the shoes of the consent authority, the Court is required to determine if consent should be granted with consideration of the provisions of s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act).

  5. For the reasons set out, I find that there are no remaining issues and that development consent should be granted. The proposed development exhibits a high level of architectural design, detailed consideration of its context, and is compliant with the vast majority of applicable planning controls. Having considered the detailed submissions of the community, I accept that the amended DA has satisfactorily addressed the relevant concerns as agreed by both Council and the Applicant’s various experts.

Amended Application

  1. The Applicant sought and was granted leave to make minor amendments to the DA, unopposed by Council. The amendments were primarily in relation to plans and information considered and recommended by the experts in joint reporting. Further information was provided including an amended Statement of Environmental Effects prepared by Robinson Urban Planning dated 24 October 2024 (SEE), a Detailed Site Investigation Report dated 27 November 2024 (DSI) and a Remediation Action Plan dated 10 December 2024 (RAP) both prepared by Alliance Geotechnical Pty Ltd.

  2. On the basis of the remediation reports, the parties submitted mostly agreed conditions of consent (substituted Ex 8) on 23 December 2024.

Site description and locality

  1. The subject site is known as 8-10 Tasman Parade, Thirroul and legally known as Lot 1 DP 556209 (site). The site has a frontage of 86m and total site area of 3,638m2. The site is essentially at the highest point of the street and surrounded by large tree vegetation.

  2. There is an existing seniors living facility on the site, proposed to be demolished. Existing development surrounding the site is low density development, primarily dwelling houses. The site is in close walking distance to public reserves and the beach.

  3. The site adjoins local heritage item 6170 which is described in the Wollongong Local Environmental Plan 2009 (WLEP) as a ‘group of fig and turpentine at 12-14 Tasman Parade, Thirroul’.

  4. The site is zoned R2 low density residential under the WLEP where seniors housing is permitted with consent. Despite being an R2 low density zone, permissible uses in this R2 zone include residential flat buildings and shop top housing.

Expert Evidence

  1. The following experts provided written and/or oral evidence in the proceedings.

Applicant

Respondent

Expertise

Gabrielle Morrish and Mark Curzon

Alexandra McRobert

Architect and Urban Design

Sandra Robinson

Brigit Mathai

Town Planning

Lachlan McNab

John Madry

Landscape Architect

Phillip Lambley

Andrew Heaven

Stormwater Engineering

Thomas Yang

Charlie Bevan

Traffic Engineering

Contentions

  1. Council confirmed that the issues raised in the amended Statement of Facts and Contentions (ASOFAC) have been resolved. I accept the parties’ agreement that the contentions have been resolved as set out below.

Neighbourhood Amenity and Streetscape

  1. This contention raised concerns about the proposed development’s contextual fit in the streetscape and amenity impacts to the rear (north) properties for overlooking and noise.

  2. I will firstly deal with one of the planning policies raised by objectors. Many of the objectors raised concerns based on the 2023 Seniors Housing Design Guide (2023 Guide). The 2023 Guide arises from State Environmental Planning Policy (Housing) 2021 (Housing SEPP). However, as the DA was lodged to Council prior to 14 December 2023, the savings provisions of Sch 7A mean that the 2023 Guide does not apply to any undetermined DA lodged before 14 December 2023, which is the case here. I am therefore unable to apply or consider the 2023 Guide.

  3. During the hearing the urban design and town planning experts prepared a written document and presented oral evidence responding to the oral and written concerns raised by objectors.

  4. I accept and adopt the evidence of the experts that the proposed development responds to the streetscape and has reasonably mitigated impacts to the adjoining neighbours for the following reasons:

  1. Firstly, the proposed development is highly compliant with the key built form controls allowable under the Housing SEPP and Apartment Design Guide (ADG) including height, Floor Space Ratio (FSR), setbacks, visual privacy and landscaping controls.

  2. The architectural plans (Ex A), Architectural Design Report prepared by Curzon + Partners (Design Report) (Ex B, Tab 9) and expert evidence of the urban designers and town planners (Ex D, Ex 6 and oral evidence), demonstrates a detailed contextual analysis has been undertaken to inform the design, including consideration of the topography, building typologies, natural conditions and environmental factors. The Design Report shows that the existing single and two storey dwellings in the block have informed the shape of the built form. I accept the agreed evidence of the urban designers and town planners that the proposed development has been designed to break the building length and present in a similar manner as four x two storey dwellings with a recessive third storey component at the rear of a sloping site. I accept that the increased setbacks of the third storey to the rear boundary minimise the built form as viewed from the rear properties along Surfers Parade and to 12 and 6 Tasman Street. The curved roof, whilst a modern addition to the block, is not antipathetic to the character and is a well designed and well considered response with a reference to the nearby beaches.

  3. The appearance as viewed from the street and surrounding properties is consistent with the dominant built form of the area. Whilst the separation is different to those dwellings located on separate blocks of land, I accept the agreed evidence of the experts and find that the built form has been highly responsive of the mixed sized dwellings in the block and streetscape. The built form has considered the sensitivity of the rear residential neighbours and is setback further than required by the planning controls, between 11.4m-16m. The Design Report details the sensitive design consideration to the heritage listed Fig Trees and provided an increased setback to the tree and stepping of the built form to give the tree prominence. I am satisfied that the proposed development has responded with a high quality built form that is contextually appropriate to the existing context and is also consistent with cl 5.10 of the WLEP.

  4. I accept and adopt the evidence of the urban designers and planners in relation to privacy impacts (Ex D and Ex 6). The ADG, objective 3F-1, seeks a minimum privacy distance of 6m from the boundary. To the rear, the proposed development generally provides double the distance with setbacks ranging from 11.4m-16m, thereby providing increased privacy measures.

  5. Along the increased side setback to 12 Tasman Street, the balconies and living areas have been fitted with a range of solid balustrades, privacy louvres, raised planters and high sill windows to minimise overlooking. I accept the evidence that the existing structures (shed/garage) will restrict some sightlines from the proposed development. The setbacks to 6 Tasman are compliant with the visual privacy distances and the balconies and living areas are also fitted with privacy measures and high sill windows to reasonably minimise privacy impacts from the proposed development.

  6. Along the rear boundary, in addition to several of these privacy measures being implemented and an increased rear setback, additional trees are proposed which will further reduce overlooking from the site to the dwellings located to the rear along Surfers Parade.

  7. For the same reasons, I accept that the acoustic and any purported view impacts are acceptable. The compliant and, for most of the development, increased setbacks, do not exasperate the acoustic impacts that would otherwise be anticipated from any other residential development anticipated in the zone. There are no elements of the building that would unreasonably remove any views or restrict view sharing between developments.

Stormwater

  1. Council’s ASOFAC contended that adequate stormwater measures were not proposed and an easement to drain stormwater was required. It was said that the proposed development was inconsistent with Chapter E14 Stormwater Management of the Wollongong Development Control Plan 2009 (WDCP), s 102 of the Housing SEPP and section 1 of the Seniors Living Policy 2004. The parties agree and I am satisfied that the contention has been resolved based on the following evidence.

  2. The parties provided detailed submissions that an easement can be obtained post development consent. In these circumstances, there are no preconditions in the planning controls requiring that stormwater management arrangements must be made prior to granting development consent. I accept the parties’ submissions that the circumstances here are distinguished from Georges River Council v Eskander [2024] NSWLEC 98, where His Honour found that the relevant LEP required that consent must not be granted unless the consent authority was satisfied that adequate arrangements had been made prior to the grant of consent. There is no equivalent clause in the WLEP or Housing SEPP regarding stormwater. Similarly, the circumstances are also distinguished from CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018, in relation to a precondition about stormwater prior to granting development consent in the relevant LEP and works being undertaken on adjoining land for stormwater. There is no similar clause in the WLEP or Housing SEPP and the proposed development seeks to utilise existing pipes on adjoining sites. Therefore, there is no legal impediment from the planning controls to granting development consent through the proposed deferred commencement condition, which requires the Applicant to obtain a legal point of discharge through an easement or easements.

  3. I have considered the detailed written and oral objections about previous flooding events. The parties and their experts agree that the environmental impacts on the proposed stormwater management system have been considered, are adequate, and improve the existing situation. The evidence of the stormwater experts is that there is currently no onsite detention to manage stormwater and overflow impacts. There is an existing easement to the north west of the site and proposed easement north east. The agreed evidence (Ex D and Ex 5) and amended civil engineering stormwater design report prepared by Enstruct (Stormwater Design Report) (Ex A Tab 6) is that the proposed internal stormwater system and on-site detention system is designed to cater for storm events, including the 1% annual exceedance period. The on-site detention system will discharge through an existing easement at 2 Surfers Parade and a proposed minimum one metre wide easement through an existing pipe at 12 Surfers Parade and out to the public drainage system in Surfers Parade, which the experts agree is a suitable method of drainage. The kerb outlet conditions were modelled using DRAINS for both pre-development and post-development impacts.

  4. Detailed in the Stormwater Design Report and agreed by the stormwater experts, post development overland flow will be less than the current pre-development levels. In the post-development scenario, DRAINS modelling indicated that there would be a reduction in the stormwater flow in the pipe and no overland flow from the development site. The experts agreed that the objectors concerns had been considered and there was no change to their agreement that the proposed method of stormwater management was adequate. I accept the experts agreement and also accept that the Stormwater Report satisfactorily demonstrates that the proposed design also meets the controls of Chapter E14 and E15 of the WDCP through the proposed OSD, landscaping filtration and various other water management measures.

  5. I accept and adopt the evidence of the stormwater experts and am satisfied that adequate stormwater and overland flow management is proposed to mitigate the impacts of the proposed development, including the easements. I accept that there are no works on adjoining land, as the DA proposes utilising existing pipes. I accept that the proposed deferred commencement condition is a lawful and appropriate mechanism to obtain the required easement.

Traffic, Carparking and Access

  1. Council had contended that the proposed traffic signalling within the basement carparking would result in vehicular manoeuvring and safety impacts. I accept the parties’ agreement and the evidence of the experts (Ex 4) that the contention has been resolved for the following reasons.

  2. The modelling within the Traffic Impact Report prepared by Traffix (TIR) of the morning and afternoon peak periods is estimated to be seven vehicular trips per hour. Considered against section 4.4 of the Austroads Guide to Road Design and section 3.5 of AS 2890.1(2004), the traffic experts agree, and I accept, that a waiting bay is not required. I accept the evidence that the low queueing probability of 0.003% and low probability of more than one car entering and exiting at the same time of 0.017% would not necessitate a waiting bay. I also acknowledge that a waiting bay is provided further within the basement.

  3. The proposed additional car parking provided on site cannot be a reason to refuse development consent, as the car parking rate of SEPP Housing is a non-discretionary development standard and the standard is to provide a minimum, which is met. The experts agree that the TIR proposes an adequate traffic light measure and vehicular management system based on the traffic generation rates for seniors living developments from Transport for NSW (TfNSW) Technical Direction TDT 2023/04a. The experts agree that the use of a single-lane, two way driveway will minimise excessive vehicular circulation areas and provides safe access to and from the proposed car parking area. A condition of consent has been included to indicate the location and parameters of the proposed traffic lights (condition 30). I accept and adopt this evidence and am satisfied that the contention is resolved.

Residential Amenity (Future Residents)

  1. Council contended that inadequate privacy between private open space and balconies was not provided as the proposed inadequate planters were insufficient. I accept and adopt the evidence of the urban designers and planners that the amended design incorporating 1.8m high privacy screens for units A8, A9, B5 and B8 resolves the contention.

Communal Open Space

  1. Council contended that the proposed communal open space was undersized and did not provide sufficient amenity for the future residents. Council’s concerns included solar access, given the mature vegetation and trees to the northern area, and adequate facilities.

  2. The agreed evidence of the urban designers and planners is that the proposed communal pen space provides a range of activities including a swimming pool, lounge area, gym, outdoor dining area, vegie patch, pitch and putt area, lawns and garden pavilion area. The experts agree that there is sufficient communal open space to service the subject site as well as the related 19-23 Tasman Parade, which will also use the subject site for communal open space.

  3. The experts agree that the amended shadow diagrams achieve more than 50% solar access, including consideration of the two fig trees. The communal open space covers approximately 33% of the site, calculated in accordance with the Housing SEPP. I accept and adopt the reasoning of the urban designers and planners and am satisfied that the communal open space is appropriately designed for a range of activities, is adequately sized for use by both sites and receives sufficient solar access. I accept that Objectives 3D-1 and 2 of the ADG and Section 5: Internal Site Amenity of the Seniors Living Policy are met.

  4. I consider the proposed hours of the communal open space under public submissions.

Community and Safety Matters

  1. Council raised concern about the intended usage of the storage areas and safety concerns due to their location. I accept and adopt the evidence of the urban designers and planners that these storage areas will be restricted by security passes and have incorporated meshed areas that achieve line of sight for passive surveillance. I accept that the concerns have been addressed.

Public Interest

  1. The public interest contention relates to the number of community objections and an all-encompassing contention where, if all contentions are resolved, there are no separate public interest issues raised. I find that all contentions have been resolved and I consider the community submissions from [34].

Insufficient Information

  1. Information relating to accessible bedrooms and laundries was provided and resolved the contention.

Public Submissions

  1. The development application as made to Council was notified by the Respondent from 1 March 2023 to 15 March 2023 where 55 submissions were received. A previous amended development application was notified from 12 September 2024 to 27 September 2024, 12 submissions were received.

  2. The hearing commenced on site and with firstly hearing oral evidence from objectors. The Court and parties were also invited to inspect a number of the objector’s properties to gain a better understanding of the concerns raised.

  3. I have carefully considered the detailed and well articulated written and oral concerns raised by adjoining and local residents. For the reasons set out below, I find that the relevant concerns expressed have been addressed by the amended DA.

Location requirements of the Housing SEPP are not met

  1. Section 93(1) of SEPP Housing requires that development consent must not be granted unless residents will have adequate access to certain facilities and services. Due to its location in the Wollongong Local Government Area, the proposed development is subject to s 93(2)(a)(c) and s 93(3) of the Housing SEPP. The amended DA meets all of the requirements of both provisions, as the application includes the use of a private bus, on site, accessible by a compliant pathway. The Operational Plan of Management sets out that the private bus will take residents to all of the required facilities and services required under the Housing SEPP as defined under s 93(5) including shops, community services, recreation facilities and general medical practitioners.

  2. A condition of consent has been included to enforce these requirements and for the private bus to be registered on title. These are enforceable by Council through the life of the seniors living development, unless amended through an application to Council. I am satisfied that the location requirements have been met and that the location of the bus pick up area on site is accessible to residents.

Incompatible with the area

  1. I have addressed the proposed development’s compatibility with the area and streetscape at [17].

Overshadowing

  1. The amended DA provided detailed shadow diagrams and the urban design and planning experts provided oral and written evidence on overshadowing. Properties to the north along Surfers Parade will not be overshadowed, due to their location. I accept the evidence that on 21 June, the time of year when solar access is at its lowest, there will be some additional overshadowing of 6 Tasman Parade from around 2pm and 12 Tasman Parade up to approximately 10am. The 9am shadowing on 12 Tasman Parade falls onto the dwelling and moves away from the property after 9am.

  2. The Seniors Living Policy, Section 4 Impacts on Neighbours seeks to minimise overshadowing of existing dwellings and their private open space. To the extent that it applies, control 6.18.2 of the WDCP solar access requires 50% of adjoining private open space areas and windows to living areas retain three hours solar access between 9am to 3pm. I cannot impose more onerous requirements than the planning controls. I accept that the proposed development has been designed to achieve the solar access requirements to the adjoining dwellings, as shown by the architectural plans (drawings DA406, DA406a, DA406b). Some impacts are reasonable, and the design of the development has minimised increased overshadowing on the main living areas and private open spaces of the adjoining dwellings. The Seniors Living Policy contains ‘rules of thumb’ and seeks to retain a minimum of three hours direct sunlight between 9am and 3pm in midwinter (21 June) to living rooms. The rules of thumb also provide that solar access to private open space should not be reasonably reduced. I accept that a minor increase on the dwellings and a small part of the private open space areas before 10am to 12 Tasman Parade and from 2pm to 6 Tasman Parade is reasonable and over three hours solar access to living areas is retained. I find that the proposed development has minimised its overshadowing impacts to adjoining dwellings.

Trees, heritage, native birds, and animals

  1. A number of submissions raised concerns about the heritage listed Fig Trees and existing trees/vegetation on site and on adjoining properties. Some submissions raised concerns about the impacts to the trees and associated impacts on native birds, mammals and reptiles.

  2. In relation to the Fig Trees, the proposed development has been further setback from the heritage listed trees. Council and the Applicant agree that the location of the building, basement and other required services (such as stormwater pits and pipes) will not impact on the stability or viability of the heritage trees. The amended DA is supported by several reports undertaken by registered arborists, including the Arboricultural Impact Assessment Report prepared by Allied Tree Consultancy dated October 2022, Root Mapping Investigation Report prepared by Allied Tree Consultancy dated May 2024, Tree Root Mapping Report prepared by GBC Group dated 1 May 2024 (Arborist Reports).

  3. I accept the evidence in the Arborist Reports that the proposed works, particularly the basement, building and servicing, will not impact on the stability or vitality of trees 21 and 22, the heritage listed trees, on 12 Tasman Parade.

  4. The proposal does not remove any trees on adjoining sites. Four trees are proposed to be removed on site, which the Arborist Reports have considered as low - medium value. All high value trees are retained. I am satisfied that the proposed tree removal is acceptable and that the identified high value trees are being retained and will be protected through construction works through the implementation of measures in the conditions of consent at Annexure A.

  5. Of the trees being removed, there is no evidence that native birds, animals or reptiles reside in these trees, or that the removal would have a detrimental impact on any habitat in the area or as observed by residents in surrounding trees. Some submissions requested prohibiting domestic animals such as cats and dogs from the development. There is no evidence to suggest that this development should be subject to this prohibition. Appreciating the importance of native wildlife, I note from the site viewing that many surrounding properties enjoy the benefits of domestic animal companionship.

  6. Stockpiling of soil under trees will not be permitted as tree protection fencing will be erected around the tree’s protection zones (condition 36).

  7. In relation to other potential heritage raised by objectors, there is no evidence to suggest any Indigenous or other heritage significance to the site. Notwithstanding, an unexpected archaeological finds condition has been included in Annexure A (condition 86) should anything be uncovered during construction.

Privacy

  1. The concerns raised about privacy are addressed at [17]. The amended DA has incorporated a range of measures including increased side and rear setbacks, privacy screens, high level windows, landscaping and trees. The seniors living dwellings located along the side boundaries have been fitted with fixed privacy screens, high level windows and planters to high trafficable rooms (such as balconies and living areas). Some bedrooms have also been fitted with high level windows. Privacy impacts from people in the pool area and communal open space areas are reasonably mitigated by the proposed 1.8m fencing. I accept that overlooking from the proposed development has been minimised and reasonably maintains privacy to all adjoining neighbours to the rear and side.

Noise

  1. Concerns were raised in the submissions about the noise from the seniors living dwellings, communal open space and roller door. The amended DA is supported by a Noise and Vibration Impact Assessment Report prepared by E-LAB Consulting dated 11 April 2024 (acoustic report) that considered acoustic impacts from construction and operation. In relation to operational noise, the acoustic report has considered noise generated from car parking, traffic and the communal areas. I accept the acoustic report’s findings that the basement car parking and traffic does not impact on adjoining residential neighbours acoustic amenity.

  2. In relation to the dwellings themselves, there is nothing out of the ordinary that would cause the dwellings to unreasonably interfere with the acoustic amenity expected to be enjoyed by all residents in a residential zone. They are residential in nature, the same as the adjoining residential properties. The density of development does not unreasonably change the acoustic amenity to be enjoyed as envisaged by the zone.

  3. The proposed shared communal open space is somewhat novel, in that there is the possibility of increased acoustic impacts to adjoining dwellings of 8-10 Tasman Parade as two developments can use one space that has a variety of outdoor uses. Council also seeks to include conditions of consent to restrict use of the communal open space to 9pm, not 10pm, on the basis of impacts of the communal open space area on adjoining residential neighbours from a space used by two developments. The applicant opposes these on the basis of the acoustic report which found the proposed development capable of complying with the relevant noise requirements.

  4. I accept that without relying on the companion development at 19-23 Tasman Parade, the communal open space is an acceptable size given the various ‘uses’ incorporated into the design. Further, use of all areas of the communal open space, including the lap pool, lawn area, pool deck and pitch & putt area, were found by the acoustic report to be within the acceptable noise criteria. This is subject to no loud events or amplified noise speakers at any time and no use of the communal open space after 10pm and before 7am. The pool itself is not to be used after 9pm or before 7am. However, I accept Council’s submissions and evidence that the impact will be greater as two developments rely on this communal open space area. The novel situation will have greater, higher demand impacts than use by one development. Impacts that would be borne by surrounding residents from both noise and lighting. Based on the evidence currently in the proceedings, I accept that use of the communal open space should be limited to 9pm.

  5. In relation to noise from the roller door and location of the driveway near 6 Tasman Parade, I find that the proposed driveway is setback from the boundary of 6 Tasman Parade by 6.7m which provides some acoustic relief from the noise of vehicles and the roller door. I have expanded the conditions of consent relating to acoustic attenuation of mechanical plant to include the roller door so that any further acoustic measures can be implemented (condition 145).

  6. Mechanical equipment such as air conditioning units have been considered and conditions of consent included (condition 32) to ensure that appropriate acoustic treatment is provided to the units and positioning mechanical plant away from residential receivers.

  7. Some of the concerns raised do not rise to the level of needing an acoustic impact assessment, for example the noise of the bins being taken to the kerb.

  8. In relation to construction noise, the acoustic report found that the noise levels would exceed the recommended management level when all tools are used. The acoustic reports recommend a number of measures including periods of respite, noise screening between sites, silences on diesel generators and measures to reduce reversing and warning alarms from equipment and vehicles. I accept that these help mitigate unavoidable demolition and construction impacts and conditions of consent enforcing these recommendations have been included at Annexure A (conditions 21, 95 and 116).

  9. I am satisfied that the acoustic report adequately addresses acoustic noise from demolition, construction and ongoing use.

Lighting (external lights, hallway lights and car lights from basement ramp)

  1. Many objections raised concerns about the outdoor lighting causing light spill to the adjoining neighbours and impacts on local wildlife. For the reasons already given in relation to noise, I accept that the communal open space should not be used after 9pm. I accept Council’s evidence that the external lighting poles would impact on adjoining neighbours, particularly as the space can be utilised by two developments. The impacts of the light spill to wildlife after 9pm have not been adequately considered in the amended DA package. I therefore accept that the main external lighting poles should be switched off after 9pm (condition 136). Other lighting as shown on the lighting assessment plans are low, bollard lights, which I accept would not cause a nuisance. Further, a condition of consent about lighting not causing a nuisance has been included, which I accept will mitigate unreasonable lighting in a residential area (condition 92).

  2. In relation to Council’s proposed louvres to minimise impacts to adjoining properties from the development’s lobby and hallway lights, I appreciate that the proposed louvres would diminish the recessive effect on these inset areas and are common in many developments. I find that in these site specific circumstances, the design implications of the louvres are minor when considered against the positive benefits gained for adjoining neighbours from the light spill that would be caused from sporadic lighting of the lobby and stairwell. Proposed condition 52 to provide louvres to the rear elevations along the lobby and stairwell areas is to be implemented.

  3. Concerns were raised about lights from cars exiting the development impacting on 15 Tasman Parade’s ground floor living area. The Traffic Report identifies an average morning hourly peak period of seven cars in total, being six cars exiting per hour, which will mostly be in daylight hours. The average afternoon peak is seven cars, with one car exiting per hour, which will also mostly occur in daylight hours with increased impacts in winter. Given the small number of vehicles exiting the site and the time of day of the impacts, I accept that this is a reasonable impact to 15 Tasman Parade.

Vibration

  1. The amended DA is accompanied by a Geotechnical Report that has been considered by Council’s civil engineers (Ex 7, Tab 4). No geotechnical concerns were raised, and the recommended conditions of consent have been included (conditions 53 to 56). Dilapidation reports form part of the conditions of consent (condition 54). The acoustic report has considered potential vibration impacts from construction and identified that the highest levels would occur during excavation. Vibration monitoring to sensitive receivers and respite periods for one hour a day are recommended. I have included that detail within the conditions of consent (condition 21(3)). I am satisfied that construction vibrations, earthworks and basement excavation works have been adequately addressed by the amended DA and conditions of consent.

Stormwater

  1. I have addressed stormwater at [18] - [22].

FSR

  1. I deal with the additional floor space ratio available to the development through the Housing SEPP at [99].

  2. The proposed additional car spaces have been correctly excluded from FSR calculations. This is due to the Housing SEPP planning control being a minimum control, not a maximum.

Parking and traffic/congestion

  1. The majority of submissions raised concerns about excessive parking, inadequate parking and traffic impacts.

  2. The proposed development is required to provide a minimum of one car space per five dwellings by the Housing SEPP. The minimum is met and the application cannot be refused on the basis of car parking. There are no restrictions on the maximum amount of car parking and similarly, as agreed by the traffic engineering experts, there are no impacts arising from the additional on-site car parking spaces. Bicycle parking has been indicated on the plans. There are no requirements for visitor parking or staff parking.

  3. It is evident from the community submissions and the site viewing that there is considerable traffic traversing this part of Thirroul, exacerbated by its single feed access to the Thirroul centre and frequent car, bicycle and walking traffic accessing the beach and regional walkways (bicycles and walkers). However, the agreed evidence during the proceedings is that the traffic generated by the proposed development can be accommodated by the existing road infrastructure.

  4. The amended DA is supported by a Traffic Report that relies on RMS guidelines and finds that in a peak period, one additional vehicle per hour is generated by the development than the previous use. Council does not press any issue and has not raised any contested evidence on the traffic assumptions, methodology or traffic/congestion for the site, block or Lawrence Hargrave Drive. This includes any required access by emergency services. I therefore accept the uncontested evidence presented in the Traffic Report that the increased traffic of one vehicle per hour generated by the proposed development is acceptable and can be accommodated by the road network.

  5. A further Traffic Letter prepared by Traffix dated 25 October 2024 (Ex G) (Construction Traffic Impact Statement), briefly considers that both developments operating together can be accommodated by the road network. I note that each development is to be considered on its own merits. However, I accept that the cumulative increase per hour from both developments will not detrimentally impact the existing road network.

  6. Concerns were also raised about construction traffic, which I deal with below under ‘construction and ongoing impacts’.

Construction and ongoing impacts

  1. Many submissions raised concerns about construction traffic and risk management, based on one or both sites redeveloping concurrently in an area with narrow roads and high pedestrian/vehicular/bike traffic.

  2. The amended DA details that the construction impacts for an approximately 16-18 month period will be managed through the following:

  • Construction Site Management and Staging Plan prepared by Icon Project Management dated August 2022 (Construction Management Plan).

  • Acoustic Report.

  • A Community Consultative Committee, to be formed for the duration of the construction period, which will manage issues that arise during construction.

  • Condition 21, requiring further detailed information to be provided for the construction site management plan, to be approved by Council and kept on site at all times.

  1. The construction period will have some temporary impacts from dust and noise during this period. The amended DA is accompanied by sufficient construction management measures in the Construction Management Plan and conditions of consent have been imposed to minimise these impacts as far as possible, as detailed under ‘noise’ and ‘acoustic’ issues. The Construction Management Plan details air, dust and odour management measures including covered stockpiling, water sprays to suppress dust, covering and washing of trucks, monitoring of odour and dust daily, more frequent monitoring during adverse weather conditions, and air monitoring equipment installed on site. Where air quality or odours reaches an unacceptable level, the Construction Management Plan details that work will stop until the levels are controlled.

  2. In relation to traffic and trucks generated through construction, the Construction Traffic Impact Statement provides a preliminary estimate of 50 vehicles per day, with 40 being heavy vehicles and 10 light vehicles. It states that the total number of vehicles per day is less than the anticipated operational number of vehicles per day. The Construction Traffic Impact Statement states that construction traffic from workers typically falls outside of the road network peak periods. It concludes that the impacts of construction traffic volumes to the road network will be negligible.

  1. I accept that the impacts from construction will impact on the current amenity of residents, particularly from noise, dust, parking and traffic. These impacts will be temporary and I accept will be appropriately managed in accordance with the documents and measures listed at [73] and conditions of consent (54 to 123B). These conditions deal with a wide range of construction issues including site management, traffic and truck management, pedestrian and bicycle safety, noise, dust, soil erosion, safety, tree protection, dilapidation reports of adjoining properties, public infrastructure protection, public liability insurances, signage, demolition, sediment control, hazardous materials, and more. I am required to assume that the applicant will comply with the conditions of consent, including their own proposed Construction Management Plan. I accept that the proposed measures in the amended DA and the conditions of consent adequately consider and will manage potential construction impacts. The preparation of a final Construction Management Plan to be approved by Council prior to the construction certificate, including traffic, is consistent with the WDCP.

  2. In considering the Construction Traffic Impact Statement and the detailed community submissions on the local road conditions, I accept that the impacts can be absorbed by the road network, however ongoing consultation with residents should be considered in the preparation of the detailed construction management plans given their detailed knowledge of the traffic conditions. The applicant has proposed a Community Consultation Committee, and I have included further details to clarify its membership including representatives from the community, council, construction management team and developer, to ensure that construction issues, including traffic, are further detailed with knowledge from local residents (condition 21(4)).

  3. Some submissions requested to limit construction to 8am to 4pm Monday to Friday, excluding public holidays and weekends. Condition 96 restricts hours of construction to 7.00 am to 5.00 pm, Monday to Saturday. No work is permitted on public holidays or Sundays. There are further restrictions for high impact periods, such as use of louder tools. These are generally standard construction hours, will allow the overall construction period to finish in a shorter period and I accept these as reasonable.

Asbestos

  1. The amended DA is supported by a Remedial Action Plan that details the remediation methods for managing identified bonded asbestos on site. Conditions of consent have also been included that require any asbestos waste to be “prepared, contained, transported and disposed of in accordance with SafeWork NSW and NSW Environment Protection Authority requirements”. I find that the RAP and conditions of consent will ensure that any asbestos found will be appropriately managed.

Work Health and Safety (WHS)

  1. These are matters for the construction certificate and management of the construction site.

Garbage collection

  1. The amended DA is accompanied by detailed waste management procedures in the Site Waste Minimisation Management Plan prepared by MRA Consulting Group dated 10 April 2024 (Waste Management Plan). The Waste Management Plan details appropriate demolition and construction waste management, including use of skip bins and recycling. Ongoing management is addressed, including how waste will be stored, taken to the street and collected, which will be in a manner similar to other dwellings in the street. The concerns raised about the washing of the bins of a development this size is an operational matter for the development. I accept that waste management during both the construction and operation of the development is sufficiently dealt with and as stated in the Waste Management Plan, is in accordance with the WDCP 2009.

Fire safety

  1. Without disregarding the detailed concerns expressed by some submissions for emergency access and fire risks in the area, the site is not located in a mapped bush fire prone area. The architectural plans incorporate fire related plant, fire tanks, fire boosters, water facilities and fire stairs. A fire safety certificate forms part of the requirements to obtain an occupation certificate prior to use of the development, which is the standard approach. Condition 138 requires that a copy of the fire safety certificate must be provided to the NSW Fire Brigade and a copy must be displayed on the building, along with a current fire safety schedule. I am satisfied that fire safety has been adequately addressed by the proposed development.

Use as residential and bedroom numbers

  1. In relation to concerns about future uses that are not seniors living, development consent would need to be sought by Council to change the use.

  2. There are no restrictions on the numbers of bedrooms for this type of seniors living development.

Property values and Airbnb impacts

  1. In relation to impacts to properties who offer Airbnb accommodation, I accept that there will be some impacts on the desirability to stay in accommodation near a construction site. However, demolition and construction are reasonably anticipated impacts in a residential area and those impacts are not a reason to refuse development consent.

  2. In relation to ongoing use of the site for seniors living, I note that the current use is for seniors living and that there is no evidence of potential impacts on property values or Airbnb rates.

Displaced residents, reduction in on-site employment and reduction in residential aged care facilities

  1. At the time of the hearing, the Court was advised that there are no current occupants on site.

  2. The proposed development is for independent seniors living units. There are no requirements to mandate a certain type of seniors/aged care facility. There are also no requirements to consider increased or decreased employment on site.

Solar panels, electric vehicle charging and energy efficiency.

  1. The amended DA incorporates solar panels on the roof. The amended DA is accompanied by BASIX certificates that meet the energy efficiency requirements. There are no mandatory requirements for electric vehicle or bike charging for seniors living developments.

Cumulative impacts

  1. The proposed development is supported by sufficient technical reports that demonstrate that the development’s impacts on the area are manageable. Each development application needs to be considered on its own merits. Notwithstanding, there is no evidence of any detrimental cumulative impacts from redevelopment in the area that would warrant refusal.

Inconsistent plans and documentation

  1. The amended DA, when read as a whole, is generally consistent in what it seeks development consent for. Minor inconsistencies are resolved through the conditions of consent, particularly condition 1 and its notes.

Inadequate community consultation

  1. Council’s bundle of documents (Ex 7) and amended Statement of Facts and Contentions (Ex 3) details that the development application was publicly notified twice.

Road and community infrastructure investment/upgrades

  1. This is a matter for Council and not relevant to the consideration of this application.

History of the site

  1. The history of the site is not a relevant consideration.

Profit

  1. Any consideration of the potential sale value or profits from the development are irrelevant.

General

  1. There were other remarks made about the social housing status and religion of the organisation. The information provided to the Court demonstrates that the organisation is a registered social housing provider. Disparaging remarks made about any religious affiliation are irrelevant.

Jurisdiction

  1. Having found that there are no contentions or community concerns that would warrant refusal of the amended DA, the following sets out the Court’s jurisdiction to grant consent.

State Environmental Planning Policy (Housing) 2021

  1. Chapter 3 Part 5 of the Housing SEPP applies to the proposed development. Due to the savings provision at Schedule 7A and lodgement date of the DA, s 8(1)(a), the former version of SEPP Housing applies to the amended DA. I am satisfied that the preconditions to grant consent are met and the merit matters have been addressed as follows.

  2. Section 84 contains development standards that must be met. On the basis of the architectural plans and SEE, I am satisfied that:

  • Section 84(2)(a) and (b) do not apply as the Applicant is a social housing provider. Section 84(2)(c) does not apply as residential flat buildings are permitted in the zone.

  • The proposed servicing equipment has been integrated into the roof, is limited to 4.6% of the roof area and is less than the maximum permitted 11.5m in height (s 84(3)) (Ex F, page 42 and Ex A, Drawings DA104 and 210-213)).

  • Section 85(1) requires the proposed development to comply with the standards in Schedule 4, with some exceptions stated in s 85(2). For the reasons set out throughout and also adopting the reasons in the SEE and Accessibility Design Review Report, I am satisfied that the relevant provisions of Sch 4 are met.

  • Section 87(1) is engaged as residential flat buildings are permitted. The proposed development is on a site over 1,500m2, being 3,638m2 in size and seeks the additional floor space ratio and building height allowances under 87(2)(b) and (c). The proposed development complies with the addition 15% permitted by s 87(2)(b)(i), being independent living units with an FSR of 0.56:1. The proposed development complies with the additional 3.8m allowed under s 87(2)(c), with a proposed maximum height less than 9.5m as shown on the architectural plans.

  • Section 88 restricts the occupation of residents in development for seniors housing. Consistent with s 88, the amended DA’s stated purpose is for seniors housing, and this is operationally enforced through a restriction under s 88E of the Conveyancing Act 1979 (condition 137).

  • Sections 93 and 94 requires independent living units to provide adequate access to facilities and services to and from the site once each weekday during daylight hours. The Applicant satisfies the provisions by providing a minibus service on site. The Plan of Management dated 24 July 2024 (PoM) states that a minibus will take residents to services at least once a day. The PoM states that these services include shops, banks, retail, commercial, community and recreation services, general medical practitioners, and Thirroul Train Station. The architectural plans show the minibus parking on site, which meets the requirements of s 94 and subss 93(1)(b), 93(3) and 93(4).

  • The SEE confirms that the site is connected to a reticulated water system and has adequate facilities for the removal/disposal of sewage (s 95).

  • Sections 97 and 98 require consideration of the Seniors Living Policy 2004 and design principles set out in ss 99-105. I have set out my consideration of the evidence for some of these requirements under the contentions. For the remaining matters, I adopt as my reasoning the evidence of the urban designers and town planners in the SEE, JER (Ex 6) and Architectural Design Report. I am satisfied that the proposed development meets the provisions of the Seniors Living Policy, design principles and ss 97 and 98.

  • Section 108 contains non-discretionary development standards that, if complied with, cannot be grounds for refusal. I am satisfied on the basis of the SEE, architectural plans and landscaping plans prepared by Context (landscaping plans) that the amended DA complies with the following non-discretionary standards as:

• The proposed building is less than 9.5m (s 108(2)(a) and (b)).

• The amended DA provides more than 35m2 of landscaping per dwelling, proposing 67.5m2 per dwelling (s 108(2)(d)).

• The amended DA provides more than 15% deep soil, at 24%, with 71% located to the rear (drawing L-002-03) (s 108(2)(f)).

• The solar access diagrams, drawings DA406-407, demonstrate that 70% of the dwellings will receive at least two hours of solar access consistent with s 108(2)(g).

•The SEE states and the architectural plans demonstrate that the proposed dwellings achieve the minimum private open space and balcony requirements consistent with s 108(2)(h) and (i).

• The architectural plans demonstrate that the amended DA provides more than the minimum car parking spaces (4 spaces), proposing 24 (s 108(j)).

  1. The parties agree that Ch 4 of the Housing SEPP applies pursuant to s 144(2), (3) and (5). Sections 145 and 147(c) apply in relation to consideration by the Wollongong Design Review Panel has been provided and I have considered the advice. I accept that the amended DA responds to the advice through the provision of a finer grain development that responds to the lower density residential built forms and the recessive third storey to primarily present as a two storey development. I accept that the adopted further setbacks to the rear and stepped elements reduce the third storey appearance to the rear.

  2. Section 147 of the Housing SEPP provides that consent must not be granted unless the quality of design and design principles in Schedule 9, and the Apartment Design Guide (ADG) have been considered. I have previously considered some of these matters in addressing the contentions and I accept and adopt the reasoning set out in the Architectural Design Report and Design Verification Statement prepared by Curzon + Partners and SEE that the provisions of s 147 have been met regarding the ADG, quality of design and design principles.

State Environmental Planning (Resilience and Hazards) 2021 (SEPP RH)

  1. Chapter 2 Coastal management applies to the subject site, mapped within the coastal environmental area and a very small portion located in the coastal use area. As set out in the SEE, I accept that the provisions of Ch 2 have been satisfied, including that adequate water management is demonstrated by the development and there will no impact on coastal views or water ways.

  2. The subject site has been identified as being contaminated through the PSI and DSI reports. A RAP has been prepared and the recommendations to remediate the contaminated materials on site have been incorporated into conditions of consent. I am satisfied that implementation of the RAP will render the site suitability for the proposed use and satisfies s 4.6 of SEPP RH.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

  1. Due to the date of lodgement of the DA, the repealed version of the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 needs to be satisfied. The amended DA is accompanied by an amended BASIX Certificate that satisfies the provisions and s 27 of Environmental Planning and Assessment Regulation 2021.

Wollongong Local Environmental Plan 2009

  1. I have had regard to the objectives of the zone and the proposed development is permissible in the zone. I have considered the provisions of the WLEP and based on the documentation accompanying the Class 1 amended DA adopt the reasoning in the SEE that the proposed development is consistent with the provisions of the WLEP, except where overridden by the Housing SEPP (being cll 4.3 height and 4.4 FSR).

Wollongong Development Control Plan 2009 (WDCP)

  1. I have considered the Applicant’s amended DA, SEE and evidence of the experts, I accept that the WDCP has been met by the amended DA and adopt as my reasons the explanation set out in the SEE.

Conditions

  1. The parties are mostly agreed to the conditions of consent. The conditions that are not agreed are in relation to operational noise, light mitigation and a covenant for the bus.

  2. I have made findings about the communal open space and lighting in the public submissions section of this judgment under ‘noise’ and ‘lighting’. I accept that the communal open space should be limited to 9pm and that louvres should be applied to the lobby and hallway areas to the rear of the development.

  3. In dispute is the proposed minibus restrictive covenant, which I accept should be called a minibus for consistency with the DA documentation.

  4. Council submits that the imposition of a positive covenant for the bus service and plan of management is warranted in these circumstances. Registration on title ensures that any future owner will be aware of the obligations of the development. A condition of consent would unlikely be noticed at the time of purchasing or occupying the building. Council submits that the circumstances here are similar to Fortunate Investments Pty Ltd v North Sydney Council 114 LGERA 1; [2001] NSWLEC 70 (Fortunate Investments), where Pearlman J found that whilst positive covenants are generally not encouraged, the obligations of that particular plan of management and subdivision should be known to prospective owners.

  5. The Christ Property Trust submits that the conditions of consent for the minibus and plan of management are sufficient and achieve the same enforceable outcome sought by Council. Registration of a covenant on title is unreasonable and not justified.

  6. I accept and adopt the reasoning of Council that the mini bus and plan of management should be included as a covenant on title and for Council to be the party to release the covenant. I accept that the circumstances are similar to Fortunate Investments and the obligations of the minibus and plan of management are significant enough to warrant prospective purchasers to be made acutely aware. Should any changes be needed or wanted, the Applicant is able to apply to Council to modify the restriction at that time.”

  7. Council submits that the imposition of a positive covenant for the bus service and plan of management is warranted in these circumstances. Registration on title ensures that any future owner will be aware of the obligations of the development. A condition of consent would unlikely be noticed at the time of purchasing or occupying the building. Council submits that the circumstances here are similar to Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 (Fortunate Investments), where Pearlman J found that whilst positive covenants are generally not encouraged, the obligations of that particular plan of management and subdivision should be known to prospective owners.

  8. The Christ Property Trust submits that the conditions of consent for the minibus and plan of management are sufficient and achieve the same enforceable outcome sought by Council. Registration of a covenant on title is unreasonable and not justified.

  9. I accept and adopt the reasoning of Council that the mini bus and plan of management should be included as a covenant on title and for Council to be the party to release the covenant. I accept that the circumstances are similar to Fortunate Investments and the obligations of the minibus and plan of management are significant enough to warrant prospective purchasers to be made acutely aware. Should any changes be needed or wanted, the Applicant is able to apply to Council to modify the restriction at that time.

  10. In relation to the other minor disagreements, I have adopted the following:

  1. Condition 4, Council’s exact measurement adopted as it removes ambiguity about tree management. Tree management and protection is critical in these proceedings for the reasons given throughout.

  2. Conditions 35 and 35A, Council’s wording is adopted. The final landscape plan should be approved by Council prior to the issue of a construction certificate, not retrofitted at a later stage.

  3. Condition 57, Council’s wording is adopted. The drafting does not restrict the staging of works.

Conclusion

  1. I am satisfied after consideration of the matters under s 4.15 of the EPA Act that development consent should be granted to the amended DA.

Orders

  1. The Court orders that:

  1. The appeal is upheld.

  2. Development application number 2023/112, as amended, for the demolition of existing buildings, tree removal and the construction of a two to three storey seniors housing building comprising 18 independent living units over basement car parking at 8-10 Tasman Parade, Thirroul, is determined by the grant of development consent subject to the conditions at Annexure A.

  1. The exhibits are returned, except for Exhibits A, B, C and 3.

S Porter

Commissioner of the Court

Annexure A

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Decision last updated: 14 March 2025

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