Edmiston Jones Pty Ltd v Wollongong City Council

[2022] NSWLEC 1308

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Edmiston Jones Pty Ltd v Wollongong City Council [2022] NSWLEC 1308

Hearing dates:

Conciliation conference on 17 May 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to amend the Class 1 application to rely on the further and amended material comprising the amended documents listed in “Part D” of the index annexed and marked “Annexure A”.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA 2019/980, as amended, for the demolition of the existing residential flat building, construction of a four-storey dual occupancy development with basement levels and strata title subdivision at 82A Cliff Road, Wollongong (Lots 1-4 in Strata Plan 1615) subject to the conditions of consent at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy development – amended plans – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy No 55—Remediation of Land (SEPP 55)

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

Water Management Act 2000 s 90

Wollongong Local Environmental Plan 2009, cll 5.10, 7.5, 7.6, 7.18

Category:

Principal judgment

Parties:

Edmiston Jones Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
I Hemmings (Applicant)
D Loether (Respondent)

Solicitors:
Holding Redlich (Applicant)
Bartier Perry (Respondent)

File Number(s):

2021/266422

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the refusal of Development Application No DA/2019/980 by Wollongong City Council. The development application seeks consent for the demolition of the existing residential flat building and construction of a four-storey dual occupancy development with basement levels and strata title subdivision. The development is proposed at 82A Cliff Road, Wollongong (Lots 1-4 in Strata Plan 1615).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 May 2022. I presided over the conciliation conference. Following the conciliation, amended plans and documentation was prepared and agreement was reached between the parties. That decision is that the appeal is upheld, and the development application is approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The proposed development is integrated development pursuant to s 4.46 of the EPA Act as a water management works approval will be required under s 90 of the Water Management Act 2000. Water NSW has issues general terms of approval, the requirements of which form part of the annexed conditions of consent.

3. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55) to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The Statement of Environmental Effects includes a review of the site history indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development.

4. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

5. Pursuant to Wollongong Local Environmental Plan 2009 (LEP 2009) the site is zone R1 General Residential. Dual occupancies are permitted with consent in the zone. In determining the development application, I have had regard to the objectives of the zone.

6. The parties submit, and I agree, that the proposed development is compliant with the applicable development standards in LEP 2009.

7. The development application is accompanied by a Heritage Impact Assessment due to the vicinity of a number of European heritage items, and an Aboriginal Cultural Heritage Assessment. In satisfaction of cl 5.10(4) of LEP 2009 I am satisfied that the proposed development will not detrimentally affect the significance of any heritage item or conservation area.

8. The site is identified on the maps in LEP 2009 as located in Class 5 Acid Sulfate Soils. Clause 7.5 of the LEP 2009 applies. The development application is accompanied by a memorandum from Douglas Partners Pty Ltd which assesses the likelihood of acid sulfate soils on the site and notes that their presence on the site is unlikely. The clause is satisfied.

9. In accordance with cl 7.6 of the LEP 2009, a preliminary Geotechnical Report and stormwater engineering design plans accompany the development application. In determining the development application, I have had regard to these documents and considered the matters at cl 7.6(4) of LEP 2009. The clause is satisfied.

10. The subject site is mapped within the Wollongong City centre, cl 7.18 Design excellence in Wollongong city centre and at key sites of the LEP 209 applies. After consideration of the matters at subcl (4) and reviewing the Design Excellence summary report prepared by AE Design, I am satisfied that the proposed development exhibits design excellence.

11. The development application was notified to adjoining and proximate properties. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

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

6. In making the orders to give effect to the agreement between the parties, I 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 of the EPA Act.

7. The Court notes that:

1. Wollongong City Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA2019/980 to rely on the further and amended material, comprising the amended documents listed in “Part D” of the index annexed and marked “Annexure A”.

2. That the Respondent has lodged the amendments to the development application on the NSW Planning Portal.

8. The Court orders that:

1. Leave is granted for the Applicant to amend the Class 1 application to rely on the further and amended material comprising the amended documents listed in “Part D” of the index annexed and marked “Annexure A”.

2. The appeal is upheld.

3. Development consent is granted to development application DA 2019/980, as amended, for the demolition of the existing residential flat building, construction of a four-storey dual occupancy development with basement levels and strata title subdivision at 82A Cliff Road, Wollongong (Lots 1-4 in Strata Plan 1615) subject to the conditions of consent at Annexure B.

……………………

D M Dickson

Commissioner of the Court

Annexure A.pdf

Annexure B.pdf

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Amendments

22 June 2022 - Typographical error corrected regarding Applicant name

Decision last updated: 22 June 2022