Kinetic Wollongong Pty Ltd v Wollongong City Council

[2023] NSWLEC 1609

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kinetic Wollongong Pty Ltd v Wollongong City Council [2023] NSWLEC 1609

Hearing dates:

Conciliation Conference 31 July, 24 August, 1 and 20 September 2023

Date of orders:

27 October 2023

Decision date:

27 October 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2) The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made in the sum of $4,500, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of these orders.

(3)   Development Application DA-2022/320 for demolition of existing structures and construction of a 9 storey residential flat building comprising 35 residential apartments over basement parking, including communal space, associated landscaping and stormwater drainage at 17-19 Gladstone Avenue, Wollongong, is determined by a grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – demolition – residential flat building – contravention of separation of building development standard – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

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

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100, 2.118, 2.119

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002, s 28

Wollongong Local Environmental Plan 2009, cl 4.3, 4.4A, 4.6, 5.10, 5.21, 7.1, 7.13, 7.18, 8.6

Texts Cited:

NSW Department of Planning and Environment Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

Kinetic Wollongong Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

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

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

File Number(s):

2023/59249

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-2022/320 for demolition of existing structures, construction of a new 9 storey residential flat building comprising 35 residential apartments, 3 levels of basement parking, communal space and elevated deck area, landscape embellishment works and stormwater drainage (the Proposed Development) at 17-19 Gladstone Avenue, Wollongong legally described as Lot 78-79 in DP 13047 (the Site).

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 has been held on 31 July, 24 August, 1 and 20 September 2023. I have presided over the conciliation conference.

3. On 16 May 2022, the Wollongong Design Review Panel (the Panel) assessed the original DA as required by cl 7.18 of the Wollongong Local Environmental Plan 2009 (WLEP) and the Panel raised a number of matters in relation to the original proposed design. The Respondent confirms that all concerns raised by the Panel were considered and accounted for in its preparation of the Statement of Facts and Contentions pursuant to s 28(2) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development 2002 (SEPP 65). These concerns have subsequently been addressed by the Amended Application and agreed conditions of consent.

4. In support of the amendments made to the proposed design as depicted in the Amended Application, in compliance with cl 28(2)(b)-(c) of the SEPP 65 and the Apartment Design Guide (ADG) Principles, the Applicant has prepared:

1. Amended Design Verification Statement prepared by by DWA dated 10 August 2023; and

2. Amended SEPP 65 Compliance Table prepared by DWA dated 10 August 2023.

5. The parties have reached an agreement as to the resolution of the contentions raised by the Respondent in the Statement of Facts and Contentions filed 23 March 2023 (SOFAC) and that agreement has resulted in the following amendments to the Proposed Development:

1. Setback of the proposed elevated deck from the floodway area;

2. Addition of planted pergola over driveway to the south;

3. Inclusion of FOGO bin areas on Basement 2 and Basement 3; and

4. Provision of universal access to NE communal open space area.

6. The parties agree that each of the amendments that have been made to the DA were made in response to concerns of the Respondent and resulted in a lesser environmental impact from the Proposed Development.

7. At the conciliation conference, the parties reached 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.

8. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be a series of planning controls and mandatory considerations in the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) aimed at facilitating the effective delivery and management of public infrastructure throughout NSW. There are also jurisdictional prerequisites in the WLEP including the terms of cl 4.6 to vary a development standard. The parties explained how the jurisdictional prerequisites have been satisfied in an agreement jurisdictional statement from which I have adopted as my reasons below.

11. The Site shares an eastern boundary with the Wollongong rail corridor, and is therefore subject to an assessment under s 2.99 of the Transport and Infrastructure SEPP which deals with Excavation in, above, below or adjacent to rail corridors and applies to development that involves the penetration of ground to a depth of at least 2m below ground level (existing) on land within 25m (measured horizontally) of a rail corridor. As required by s 2.99(2) the Respondent referred the Proposed Development to Transport for NSW (TfNSW) for concurrence on 5 April 2022, and re-referred on 2 September 2023. By response letters dated 3 May 2022 and 27 September 2022, TfNSW provided comments and confirmed that it would grant concurrence subject to conditions set out in their letters. The matters the subject of the conditions set out in the letter from TfNSW have been included in the proposed conditions of consent at Annexure A.

12. The impact of rail noise or vibration on non-rail development is a relevant provision of the Transport and Infrastructure SEPP and s 2.100 applies to residential development on land in or adjacent to a rail corridor and relevantly provides as follows:

2.100 Impact of rail noise or vibration on non-rail development

…

(2) Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines that are issued by the Director-General for the purposes of this clause and published in the Gazette.

(3) If the development is for the purposes of a building for residential use, the consent authority must not grant consent to the development unless it is satisfied that appropriate measures will be taken to ensure that the following LAeq levels are not exceeded:

(a) in any bedroom in the building—35 dB(A) at any time between 10.00 pm and 7.00 am

(b) anywhere else in the building (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

13. In compliance with s 2.100, the Applicant has filed an Acoustic Report and Train Noise Intrusion Assessment with the Class 1 Application (Tabs 24 and 25). The Acoustic report concludes that the Proposed Development will comply with the relevant controls under subss (2) and (3) on the basis of the construction methods proposed, and subject to the uptake of certain recommendations which are incorporated into the conditions of consent.

14. Gladstone Avenue is listed as an ‘unclassified regional road’ within the Wollongong CBD western bypass (Road No 7641) and as such it is not necessary to consider the provisions of ss 2.118-2.119 of the Transport and Infrastructure SEPP that requires a consent authority to consider the impact of arterial roads on buildings used for residential purposes.

15. The Proposed Development engaged the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

16. Pursuant to s 4.6 of the Resilience and Hazards SEPP a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site to the Proposed Development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

17. In relation to the satisfaction of requirements under the Resilience and Hazards SEPP, the Applicant has prepared and submitted the following documents:

1. Amended Preliminary and Detailed Site Investigation (Preliminary DSI) prepared by Reditus dated 2 August 2022 (Tab 19 of Class 1 Application);

2. Amended Geotechnical Investigation Report prepared by Fortify Geotech dated 2 August 2022 (Tab 18 of Class 1 Application); and

3. Response to environmental issues relating to contamination prepared by Reditus dated 22 August 2022 (Tab 20 of Class 1 Application).

18. These reports investigate the contamination status of the Site. The Preliminary DSI concludes at page 45 that the Site can be made suitable for the proposed use subject to the implementation of recommendations to be followed during the process of demolition/excavation which have been incorporated in the agreed conditions of consent.

19. In compliance with the relevant requirements under the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant has prepared and provided an amended BASIX Certificate 1277795M_04 dated 7 September 2023.

20. The Proposed Development, categorised as a residential flat building, is permissible pursuant to the WLEP.

21. The highest point of the proposed building stands at a maximum height of approximately 31.7m measured from existing ground level, in compliance with the Height of Building development standards of 32m pursuant to cl 4.3 of the WLEP, as depicted in Drawing No 83.

22. The Site has a total area of 1,237.18m², allowing a maximum Gross Floor Area (GFA) of 3,084.59m². The Applicant proposes a maximum of 3,081.78m² of GFA with an Floor Space Ratio (FSR) of 2.49:1, in compliance with the development standard FSR of 2.5:1 pursuant to s 4.4A of the WLEP as depicted in Drawing No 90.

23. In relation to heritage conservation, the Site is not identified as a heritage item nor is it located within a heritage conservation area pursuant to cl 5.10 of the WLEP. There are 2 nearby local heritage items near the site, namely:

1. Item No 6467, “Wollongong TAFE” (locally listed heritage item)– located approximately 30m to the south west of the site; and

2. Item No 6382, “Wollongong Railway Station Group — Railway Station Square” (state listed heritage item) – located approximately 60m to the north east of the site.

24. The Applicant has filed a heritage impact assessment with the Class 1 Application pursuant to cl 5.10 of the WLEP, which assesses the relevant considerations and heritage controls and concludes that the consent authority can be satisfied that the Proposed Development is consistent with the heritage objectives. On 7 March 2023, comments were received from Heritage NSW, and the parties have considered these in reaching agreement.

25. The Site is identified within the flood planning area. Accordingly, the Court must be satisfied of the criteria listed at cl 5.21(2) of the WLEP, and must consider the matters listed in cl 5.21(3) of the WLEP. In satisfaction of cl 5.21, the Applicant’s flooding expert has prepared a detailed assessment titled Detailed Flood Study dated 5 September 2023 and the Court is satisfied that cl 5.21 of the WLEP has been satisfied.

26. Clause 7.1 (“Public Utility Infrastructure”) requires the consent authority to be satisfied that public utility infrastructure essential to the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required. The Proposed Development will be serviced by sewer, water and telecommunications and conditions have been imposed accordingly for the required clearance certificates.

27. In relation to energy, paragraphs 5(c) and 29(d) of the SOFAC note that it is unclear whether the proposed building is required to be serviced by a substation. In satisfaction of this, the Applicant has filed an electrical load assessment which confirms that the Site is capable of being serviced via the existing public utility infrastructure in the street. The SOFAC notes at paragraph 59 that the DA was notified to Endeavour Energy for comment, pursuant to s 2.48 of the Transport and Infrastructure SEPP. Section 2.48(2) requires the consent authority to take into consideration any response to the notice that is received within 21 days after the notice is given. Comments were received from Endeavour Energy on 21 April 2023. Earlier comments received from Endeavour Energy dated 26 April 2022 confirm the availability of energy services within the street.

28. The Site is identified as being in the “MU1 - Mixed Use” Zone”. The Court is satisfied that cl 7.13 of the WLEP is complied with because the ground floor of the proposed building will not be used for the purpose of residential accommodation and contains an entryway and windows facing the primary street frontage.

Justification of contravention of building separation development standard

29. Clause 8.6 of the WLEP relates to Building separation within Zone E3 Commercial Core or Zone MU1 Mixed Use and provides a series of development standard controls for buildings on land zoned MU1 Mixed Use. Subcll (2)-(3) relevantly provide as follows:

(2) Buildings on land within Zone E3 Commercial Core or MU1 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.

30. The Proposed Development has areas of non-compliance to its north and south frontages. The Applicant relies on a written request pursuant to cl 4.6 of the WLEP to justify the contravention of the building separation development standard prepared by MMJ dated August 2023, Revision B filed 18 September 2023.

31. The Court is satisfied with the Written Request, for the following reasons:

1. compliance with the development standard is unreasonable or unnecessary given that the objectives of the standard are achieved notwithstanding the non-compliance, for reasons including:

1. despite the height non-compliance, the proposed variation does not result any material loss of daylight access to surrounding buildings or the public domain as existing, and has been designed so as to preserve adequate solar access in future redevelopment scenarios;

2. despite a technical non-compliance on its northern and southern setbacks, there is no material loss in privacy to the adjoining properties beyond what an otherwise compliant building would produce - a function of the northern elevation adjoining a communal open space area (7-15 Gladstone Avenue) and habitable rooms in the proposed building being orientated away from the southern boundary;

3. the visual appearance of the building contributes positively to the streetscape of Gladstone Avenue and is treated as necessary to respond to create visual interest, whilst also emphasising separation;

2. there are sufficient environmental planning grounds to justify contravening the development standards, noting:

1. the north-eastern portion of the site is flood prone, which creates physical constraints on the form of development proposed. The proposed built form is responsive to these constraints;

2. consistency in the streetscape and desired future character of the area zoned B4/MU1 – Mixed Use zones , noting the approved neighbouring residential flat buildings to the north and potential future redevelopment to the south; and

3. consistency with the objective of the control as a result of a lack of adverse amenity impacts;

3. noting that the Proposed Development remains consistent with the objectives of the particular development standard(s) and the zone in which the development is to be carried out, the consent authority can be satisfied that the Proposed Development is in the public interest.

32. The Court is satisfied that the applicant’s written request seeking to justify the contravention of the development standard in cl 8.6 of the WLEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the WLEP and that the Proposed Development would be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out.

33. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in accordance with this judgment.

34. 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.

Notations:

35. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA-2022/320 in accordance with the documents listed below:

No	Document	Date
1.	Schedule of Amendments prepared by DWA	7 September 2023
2.	Amended Architectural Plans prepared by DWA	7 September 2023
3.	Amended Landscape Plan prepared by Taylor Brammer	4 September 2023
4.	Amended Stormwater Plans prepared by CAM Consulting	11 August 2023
5.	Updated Clause 4.6 (Building Separation) Request prepared by MMJ Planning	14 August 2023
6.	Updated Design Verification Statement and SEPP65 Compliance Table prepared by DWA	11 September 2023
7.	SEPP65 Compliance Table prepared by DWA	10 August 2023
8.	Amended Traffic Swept Paths prepared by ATB Consulting	7 August 2023
9.	Detailed Flood Study prepared by REINCO Consulting	5 September 2023
10.	Stormwater Contentions Response Letter prepared by CAM Consulting	11 August 2023
11.	Site Drainage Analysis Letter prepared by REINCO Consulting	7 August 2023
12.	Electrical Substation Load Letter prepared by HHH Consulting	8 May 2023
13.	Structural Engineering Letter prepared by CAM Consulting	14 August 2023
14.	Amended Waste Management Plan prepared by Dickens Solutions	August 2023
15.	Updated BASIX Certificate and NaTHERS prepared by Integreco	7 September 2023
16.	Updated QS Report prepared by PBA	11 September 2023

2. The amended development application was filed with the Court on 18 September 2023.

Orders:

36. The Court orders:

1. The appeal is upheld.

2. The Applicant to pay the Respondent’s costs thrown away as a result of the amendments made in the sum of $4,500, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of these orders.

3. Development Application DA-2022/320 for demolition of existing structures and construction of a 9 storey residential flat building comprising 35 residential apartments over basement parking, including communal space, associated landscaping and stormwater drainage at 17-19 Gladstone Avenue, Wollongong, is determined by a grant of consent subject to conditions contained in Annexure A.

E Espinosa

Commissioner of the Court

**********

ANNEXURE A

Decision last updated: 27 October 2023