McDonagh Developments Pty Ltd v Wollongong City Council

[2022] NSWLEC 1239

Land and Environment Court

New South Wales

Medium Neutral Citation:

McDonagh Developments Pty Ltd v Wollongong City Council [2022] NSWLEC 1239

Hearing dates:

Hearing: 3 May 2022; Conciliation conference on 3 May 2022

Date of orders:

6 May 2022

Decision date:

06 May 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA 2021/1053 for demolition of existing structures and tree removals, construction of a multi housing development comprising 9 x 3 bedroom dwellings and strata subdivision on land described as 3-5 James Road, Corrimal, together with drainage works to dispose of stormwater through a proposed easement over part of the land described as Lot 2 in DP 519091, is determined by the grant of consent, subject to conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing in R2 Low Density Residential zone – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

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

Water Management Act 2000

Wollongong Local Environmental Plan 2009, cll 5.21, 7.1, 7.6

Category:

Principal judgment

Parties:

McDonagh Developments Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
E Kilpatrick (Solicitor) (Respondent)

Solicitors:
Pickup Legal (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2021/338893

Publication restriction:

No

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Wollongong City Council (the Respondent) of Development Application No DA-2021/1053 seeking consent for demolition of existing structures, tree removals, construction of multi-dwelling housing comprising 11 x 3 bedroom dwellings and strata title subdivision at Lot 7-8 in DP 19666 otherwise known as 3-5 James Road, Corrimal (the site).

2. The matter was initially listed before me for hearing on 3 May 2022. At the commencement of the hearing, the parties advised the Court that as a consequence of amendments evident in amended plans and other documents filed with the Court on 26 April 2022, and further amended plans dated 3 May 2022, all contentions are resolved.

3. On application of the parties, the matter was reallocated to me under s 34 of the Land and Environment Court Act 1979 (LEC Act), and I presided at the conciliation conference at which the parties reached in-principle agreement on all of the matters in contention. 

4. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 3 May 2022.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties prepared a jurisdictional statement to assist the Court in understanding how the requirements of the relevant environmental planning instruments have been satisfied, in order to allow the Court to make the agreed orders at [1].

7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons that follow:

1. The site is located with the R2 Low Density Residential zone, pursuant to the Wollongong Local Environmental Plan 2009 (WLEP), in which multi dwelling housing is permitted with consent, where consistent with the following objectives for development in the zone:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. The site is identified as ‘Uncategorised Flood Risk Precinct’. I have considered the Civil Stormwater design plans prepared by Opal Water Management dated 13 April 2022, which include details of onsite detention of water and a grass lined swale to manage overland flow that is also evident in the Landscape Concept Plan prepared by Forerunners Designs dated 6 April 2022. On this basis, and by reference to the Architectural plans (Issue E) that depict portions of the development elevated on piers above natural ground level, I am satisfied with respect to the matters set out at cl 5.21(2) of the WLEP with respect to flood planning.

3. The site is currently serviced by public utility infrastructure within the terms of cl 7.1 of the WLEP. On this basis, and on the basis of the agreed conditions of consent, I am satisfied that any public utility infrastructure that is essential for the proposed development is, and will be, available in accordance with cl 7.1(2) of the WLEP.

4. I consider any disruption to drainage patterns and any impacts on the nearby watercourse to be addressed by the Civil Stormwater design plans prepared by Opal Water Management dated 13 April 2022, and by virtue of the elevated structures depicted on the Architectural plans (Issue E), pursuant to cl 7.6 of the WLEP.

5. As the development requires a controlled activity approval under the Water Management Act 2000, the development application is integrated development within the terms of s 4.46 of the EPA Act. The Natural Resources Access Regulator has issued General Terms of Approval that are contained in the agreed conditions of consent.

6. I accept the site is, and has historically been, the site of residential occupation without cause to give rise to contamination requiring remediation within the terms of cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

7. Finally, I am satisfied that the application is accompanied by a BASIX certificate (Certificate No 1166124M_03, dated 20 April 2022) prepared by Chapman Environmental Services Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

Conclusion

8. In arriving at my conclusion, I note the development application necessitates a drainage easement for the disposal of stormwater on adjoining land. The development application is supported by owner’s consent for the easement from the owners of adjoining properties at Nos 3 and 5 James Road, and also from the proprietors of Strata Plan 5036 at No 7A James Road.

9. I also note the Respondent’s advice that the amended plans were the subject of re-notification in response to which two objector submissions were received and relate to matters that the Respondent considers to have been addressed by the further amended plans.

10. 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.

11. 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.

12. The Court notes that:

1. The Applicant has amended Development Application DA 2021/1053 with agreement of Wollongong City Council (pursuant to clause 55(1) of the Environmental Planning and Assessment Regulation 2000), as the relevant consent authority to incorporate the following amended plans and documents:

1. Architectural Plans Revision E dated 22 April 2022 and prepared by Forerunners Designs.

2. Aboricultural Impact Assessment dated 29 April 2022 and prepared by Truth About Trees Pty Ltd.

2. The amended development application has been lodged on the NSW planning portal on 3 May 2022.

3. The Applicant has filed the amended development application with the Court on 3 May 2022.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Development Application DA 2021/1053 for demolition of existing structures and tree removals, construction of a multi housing development comprising 9 x 3 bedroom dwellings and strata subdivision on land described as 3-5 James Road, Corrimal, together with drainage works to dispose of stormwater through a proposed easement over part of the land described as Lot 2 in DP 519091, is determined by the grant of consent, subject to conditions in Annexure A.

……………………

T Horton

Commissioner of the Court

(Annexure A)(524367, pdf)

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Decision last updated: 06 May 2022