Harbour Smith Management Pty Ltd v Wollongong City Council

[2021] NSWLEC 1140

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harbour Smith Management Pty Ltd v Wollongong City Council [2021] NSWLEC 1140

Hearing dates:

Conciliation conference held on 25 January, 8 February and 4 March 2021

Date of orders:

18 March 2021

Decision date:

18 March 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

See orders at [27] below

Catchwords:

DEVELOPMENT APPLICATION – residential flat building – site width development standard – impact on heritage items – scale and bulk – conciliation conference – agreement between the parties

Legislation Cited:

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

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

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy

Category:

Principal judgment

Parties:

Harbour Smith Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Planning Law Solutions (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2020/221272

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application No. 2019/1008 was lodged with Wollongong City Council on 13 September 2019 seeking consent for demolition of existing structures and construction of a residential flat building over basement car park. The development was to comprise two levels of basement carparking, with 8 residential levels above containing 6 three-bedroom units at No 1 Smith Street, Wollongong.

2. The Applicant is appealing the refusal of the application pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 January, 8 February and 4 March 2021. I presided over the conciliation conferences.

4. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published on 8 July 2020, the matter was conducted by Microsoft Teams. No site view was undertaken.

5. The matter was heard pursuant to the provisions of s 34 of the LEC Act. A number of contentions were resolved during the conciliation phase and as a result of those actions, the Applicant sought and was granted leave to rely on amended plans.

6. The height of the building has been reduced and now comprises two basement levels and six storeys. The number of units is now five, each comprising three bedrooms with unit 5 occupying the top two floors of the building.

7. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

8. 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:

9. The proposed use is permissible in the R1 General Residential Zone under the provisions of Wollongong Local Environmental Plan 2009 (LEP) pursuant to cl 5.3 of the LEP.

10. The proposal is compliant with the relevant development standards for building height (24m permitted and 18.25m proposed) and floor space ratio (1.5:1 permitted and 1.26:1 proposed).

11. The Applicant has filed a clause 4.6 variation request to vary the development standards at cl 7.14 Minimum site width under the LEP. The clause requires a minimum site width of 24m for construction of residential flat buildings. The irregular shape of the allotment does not achieve this width in part. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of the LEP, I am satisfied that:

1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of the LEP).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standards (cl 4.6(3)(b) of the LEP).

12. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of the LEP are met.

13. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R1 General Residential zone. There are no objectives in cl 7.14 that apply to the minimum site width development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met.

14. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

15. 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 breach of the control.

16. The site adjoins an item of environmental heritage (item 6378, a sandstone monument) which is located within the road reserve and is also within the vicinity of a number of other heritage items. An assessment of the potential impact of the development on item 6378 has been undertaken and concludes the development will not adversely affect the item. I accept those conclusions. The parties also agree that the development will not have any direct impact on the nearby heritage items, and I accept those findings. Therefore, the provisions of cl 5.10 of the LEP are met.

17. Necessary public utility infrastructure is available to service the site as required under cl 7.1 of the LEP.

18. The terms of cl 7.6 Earthworks have been considered and addressed through appropriate consent conditions.

19. The necessary documentation required under the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development has been provided and the Council is satisfied that the design of the development meets the provisions of that Policy and the Design excellence provisions of cl 7.18 of the LEP.

20. I am satisfied that the site is suitable for the proposed development having regard to the provisions of State Environmental Planning Policy No 55 – Remediation of Land, particularly as no change of use has been proposed, the site currently containing a residential flat building.

21. A BASIX Certificate has been prepared in accordance with the provisions of cl 50 of the Environmental Planning and Assessment Regulation 2000.

22. There are not any other matters contained in the Environmental Planning and Assessment Regulation 2000 that prevent grant of consent.

23. I am satisfied, based on the evidence of the Council that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are acceptable and that the site is suitable for the development as proposed.

24. It is the Council's opinion that the development will not adversely affect views from adjoining properties or view corridors, and I must accept this submission in the absence of a site view. Other matters raised by persons who made submissions to the Council concern the failure to comply with the site width development standard in the LEP, addressed at [11]-[15]. The Council has considered this issue and, on the basis of evidence provided to it in relation to the inability of the Applicant to acquire the adjoining site, supports the variation to the development standard. Other submissions address the height of the building which the Court notes at 18.25m, is considerably less than the 24m allowed pursuant to cl 4.3 of the LEP. I have addressed heritage impacts at [16].

25. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. 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 of the EPA Act.

27. The Court orders that:

1. Leave is granted to rely on the following documents that are the subject of development application DA2019/1008:

Name of Plan/Document	Prepared By	Drg/Doc No. & Revision	Document Date
Statement of Environmental Effects	MMJ Wollongong	Job no. 18.47 Rev B (including s4.6 statement Rev C 4.3 (002)	February 2021
Site Plan	ADM Architects	A-101- E	2 February 2021
Lower Basement Floor Plan	ADM Architects	A-102-B	2 February 2021
Upper Basement Floor Plan	ADM Architects	A-103-B	2 February 2021
Ground Floor Plan	ADM Architects	A-104-E	2 February 2021
Level 1-3 Floor Plan	ADM Architects	A-105-G	15 February 2021
Level 4 Floor Plan	ADM Architects	A-106-G	15 February 2021
Level 5 Floor Plan	ADM Architects	A-107-G	15 February 2021
Roof Plan	ADM Architects	A-108-E	15 February 2021
North Elevation	ADM Architects	A-201-G	15 February 2021
East Elevation	ADM Architects	A-202-G	15 February 2021
South Elevation	ADM Architects	A-203-G	15 February 2021
West Elevation	ADM Architects	A-204-G	15 February 2021
Section A-A	ADM Architects	A-205-F	15 February 2021
Section B-B	ADM Architects	A-206-B	15 February 2021
Colour and Materials Schedule	ADM Architects	A-501-G	15 February 2021
Demolition and Site Management Plan	ADM Architects	A-601-A	9 September 2019
Landscape Concept Plan	Ochre Landscape Architects	1867-LD01 Rev C	3 February 2021

2. The Applicant is to pay the Respondent’s costs thrown away in the amount of $6,000 in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development Application DA2019/1008 for demolition of existing structures and the construction of a six-storey residential flat building at Lot 1 DP 8441, 1 Smith Street Wollongong NSW is determined by the granting of consent, subject to the conditions at Annexure “A”.

……………………….

S Morris

Acting Commissioner of the Court

Annexure A (247972, pdf)

Plans (13063744, pdf)

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Amendments

15 May 2025 - Change Environmental Planning and Assessment 1979, s 8.8 to s 8.7 in legislation and body para [2].

Decision last updated: 15 May 2025